Environmental Review
Tribunal
Case No.: 05-065
RPL Recycling & Transfer Limited v. Director,
Ministry of the Environment
In the matter of an appeal by RPL Recycling & Transfer Limited filed on September 21, 2005, for a Hearing before the Environmental Review Tribunal pursuant to section 140 of the Environmental Protection Act, R.S.O. 1990, c. 19, as amended, with respect to Order No. 8742-8FUHSY issued by the Director, Ministry of the Environment, on September 6, 2005 under s. 157.3(5) of the Environmental Protection Act, regarding work ordered as a result of the receipt of waste material at the waste disposal facility located at A-63 Medulla Avenue in the City of Toronto, Ontario; and
In the matter of a Preliminary Hearing held on Tuesday, January 10, 2006 at 10:00 a.m. in the Hearing Room of the Environmental Review Tribunal, 2300 Yonge Street, 12th Floor, Toronto, Ontario.
Before: Toby Vigod, Chair
Jerry V. DeMarco, Vice-Chair
Appearances:
Rosalind Cooper - Counsel for the Appellant, RPL Recycling & Transfer Limited
George Leonard - Counsel for the Director, Ministry of the Environment
P. Douglas Petrie - Counsel for Hymopack Limited
and Annie Thuan
Dated this 19th day of January, 2006.
Reasons for Decision
Background:
RPL Recycling & Transfer Limited (“RPL”) operates a transfer station for the sorting and distributing of waste at 63 Medulla Avenue, Unit A, Toronto, Ontario (the “Site”).
On August 24, 2005, Lissa deFreitas, Provincial Officer, Toronto District Office, Ministry of the Environment (“MOE”) issued a Provincial Officer’s Order No. 4443-6FBPNH requiring RPL to undertake certain activities in relation to the types of incoming waste, and the storage, removal, inspection and documentation of waste located at the Site.
On August 29, 2005, RPL requested a review of the Provincial Officer’s Order by the Director, MOE. On September 6, 2005, S. Klose, Director, MOE, confirmed the Provincial Officer’s Order by issuing Director’s Order No. 8742-6FUHSY (“the Order”) to RPL.
On September 21, 2005, RPL appealed sections 3, 4, 6 and 7 of the Order to the Environmental Review Tribunal (“the Tribunal”) and requested a Stay of the Order.
The Stay Hearing was held by teleconference call on November 22, 2005. At that time, the Tribunal was advised that the Parties had agreed to consent to a Stay, rather than an Interim Stay of the Order.
On December 23, 2005, Knox Henry, Vice-Chair, issued a written confirmation of the oral Order given on November 22, 2005. The Tribunal made the following Order:
The Tribunal orders that sections 3, 4, 6 and 7 of Provincial Officer’s Order No. 4443-6FBPNH, issued August 24, 2005, as amended by the Director’s Order No. 8742-6FUHSY, issued September 6, 2005, are stayed, subject to the following conditions:
RPL shall not, during the term of the Stay, allow or cause to be brought onto the Site any food waste, as defined by Certificate of Approval No. A680283, dated August 7, 1998, as amended.
RPL shall submit a complete application for approval to the Ministry of the Environment’s Environmental Assessment and Approval Branch no later than the close of business on November 14, 2005, seeking the consolidation and updating of Certificate of Approval No. A680283, dated August 7, 1998. The application shall include a detailed description of each category and subcategory of waste desired to be received and processed at the Site.
In the event that one or more of the conditions of Stay are not complied with, the Stay is immediately revoked and sections 3, 4, 6 and 7 of the Provincial Officer’s Order, as confirmed by the Director’s Order, will return to full force and effect.
The Tribunal Stays the Director’s Order effective November 22, 2005 until the earlier of:
January 31, 2006 (a date agreed to by the Parties);
the Tribunal disposes of the appeal;
the Provincial Officer’s Order is revoked; or
one or more of the conditions of Stay are not complied with.
On December 1, 2005, P. Douglas Petrie, on behalf of Hymopack Limited (“Hymopack”), an immediate neighbour to the south of RPL located at 41 Medulla Avenue, wrote to the Tribunal requesting Party status in the appeal. On December 2, 2005, the Tribunal wrote to Mr. Petrie indicating that he should attend the Preliminary Hearing and request status for Hymopack at that time.
A Preliminary Hearing was held on January 10, 2006 in the Hearing Room of the Environmental Review Tribunal, 2300 Yonge Street, 12th Floor, Toronto, Ontario.
Hymopack’s Request for Status:
The main Parties to the Hearing are:
- RPL represented by Rosalind Cooper, Counsel
- Director, MOE, represented by George Leonard, Counsel
At the Preliminary Hearing, Mr. Petrie, on behalf of Hymopack initially requested Party status for Hymopack. Hymopack is a manufacturer of plastic bags and is the immediate industrial neighbour to the south of RPL. Mr. Petrie submitted that Hymopack has a long and demonstrated interest in waste management activities at the Site, going back to the early 1990s, both with the previous owner of the Site, Recycle Plus Ltd., as well as RPL. Hymopack was involved with the MOE Approvals Branch in the negotiation of the original Certificate of Approval for the Site. Mr. Petrie explained that it is very important for Hymopack to have a dust-free operation, and that RPL’s operations affect Hymopack’s ability to operate. Mr. Petrie submitted that Hymopack is uniquely situated to tell the story of the Site’s impact. In the course of the Preliminary Hearing, Mr. Petrie indicated that his client might only request Participant status, as Hymopack did not want to get involved in the details of document exchange.
RPL and the Director did not object to the granting of party or participant status to Hymopack. RPL acknowledged that Hymopack has an interest in the matter and has taken an active role in the Certificate of Approval process. However, RPL submitted that as Hymopack has the same interest as the Director that its submissions should be somewhat constrained. The Director noted that the nub of the dispute regarding the Order and the Certificate of Approval application process that is presently underway is the waste stream that is being brought onto the Site as well as Site operations and that it was difficult to untangle the interests of the MOE and Hymopack. Mr. Petrie submitted that Hymopack was more concerned with how the waste is handled on site to avoid adverse impacts than the waste stream that is being brought onto the Site.
The Tribunal grants Hymopack either Party or Participant status to be determined by Hymopack and communicated to RPL, the Director and the Tribunal if a Hearing proceeds.
Hearing Dates and Stay:
RPL indicated that it has filed an application to amend its Certificate of Approval with the MOE. The MOE has requested additional information, which is due on January 31, 2006. The initiative to amend the Certificate of Approval is to help ensure compliance with all conditions. The Parties indicated that if the issues are satisfactorily resolved in the amended Certificate of Approval, the Order may be revoked and a Hearing would not be necessary. It was noted that the MOE is expected to have a response to RPL in regard to the new information a week after it is filed. Based on this timeline, RPL requested that a teleconference call be scheduled for mid- February to discuss the status of the matter and to determine whether a Hearing would be necessary. A date of February 14, 2006 was agreed to for the teleconference.
RPL also asked that the date of the Stay granted by Vice-Chair Henry be amended from January 31, 2006 until the date of the teleconference call. The Director agreed with this request. Counsel for Hymopack indicated that Hymopack did not want to been seen as acquiescing with the extension of the stay and questioned whether RPL had met the terms of the initial stay by not sending in a completed application, as required. The Director submitted that while he was not totally satisfied with the application, he was not taking the position that it was not complete and that it was very common for the Approvals Branch to seek additional information from the Applicant.
The Tribunal finds that the terms of the original Stay have been complied with to date, and that it was reasonable to extend the date of the Stay until the teleconference call on February 14, 2006, especially given the possibility that the matter could be resolved without the necessity of a Hearing.
Order
The Tribunal grants Hymopack either Party or Participant status to be determined by Hymopack and communicated to RPL, the Director and the Tribunal if a Hearing proceeds.
The terms of the Stay granted in the Tribunal’s Order dated December 23, 2005 will remain in effect, except that the date in item #1 will be amended from January 31, 2006 to February 14, 2006.
The Preliminary Hearing is adjourned to a teleconference call to be held on Tuesday, February 14, 2006 at 10:00 a.m. at which time the Parties will provide a status report on the matter and discuss whether a Hearing is necessary. At that time, should a Hearing be required, hearing dates, document disclosure, the filing of witness statements, the issuance of any further stay and any other related matters will be discussed.
Stay Order Amended Preliminary Hearing Adjourned
Toby Vigod, Chair
Jerry V. DeMarco, Vice-Chair
Appendix A- List of Parties
Appendix A
List of Parties
Appellant: RPL Recycling & Transfer Limited
Counsel for Appellant: Rosalind Cooper
Fasken Martineau DuMoulin LLP
Barristers and Solicitors
66 Wellington Street West
Suite 4200, Toronto Dominion Bank Tower
Box 20, Toronto-Dominion Centre
Toronto, ON M5K 1N6
Director: S. Klose
Director, Ministry of the Environment
Counsel for Director: George Leonard
Legal Services Branch
Ministry of the Environment
135 St. Clair Avenue West, 10th Floor
Toronto, ON M4V 1P5
Party or Participant: Hymopack Limited
Counsel for Hymopack: P. Douglas Petrie and Annie Thuan
Willms & Shier Environmental Lawyers LLP
4 King Street West
Suite 900
Toronto, ON M5H 1B6