Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: March 26, 2015
CASE NO(S).: 15-005 15-006 15-007
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c.E.19, as amended
Appellant: Donald M. Gaffney (ERT Case No.15-005)
Appellant: Elizabeth Jeanette Gaffney (ERT Case No. 15-006)
Appellant: John Gaffney (ERT Case No.15-007)
Respondent: Director, Ministry of the Environment and Climate Change
Subject of appeal: Order issued under section 17, 18 and 196(1) of the Environmental Protection Act to submit a remedial action plan with respect to groundwater and soil contamination
Reference No.: 0017-9RWHXN
Property Address/Description: 35430 and 35448 Huron Road, Goderich
Municipality: Central Huron
Upper Tier: County of Huron
ERT Case Nos.: 15-005/15-006/15-007
ERT Case Name: Gaffney v. Ontario (Environment and Climate Change)
Heard: February 2, 2015 by telephone conference call
APPEARANCES:
| Parties | Counsel |
|---|---|
| Donald Gaffney, Elizabeth Gaffney and John Gaffney | Barry Weintraub |
| Director, Ministry of the Environment and Climate Change | Justin Jacob and Alexandra Mingo |
ORDER DELIVERED BY JUSTIN DUNCAN AND FRANK PHILCOX
REASONS
Background
1These are appeals by Donald Gaffney, Elizabeth Gaffney and John Gaffney (“Appellants”) from the decision of the Director, Ministry of the Environment and Climate Change (“MOECC”) to issue a Director’s Order dated December 18, 2014 (Order No. 0017-9RWHXN) under s. 17, 18 and 196 of the Environmental Protection Act (“EPA”) which requires the Appellants to, among other things, ensure that a remedial action plan (“RAP”) is developed and then implemented to address diesel contamination on properties known municipally as 35430 and 35448 Huron Road, Goderich. Number 35430 Huron Road is owned by Canadian Tire Real Estate Limited and is located adjacent to 35448 Huron Road which is owned by Huron Concrete Supply Limited (“Huron Concrete”) which operates a ready mix concrete plant on the property. The diesel contamination is believed to have originated on the Huron Concrete property. The Appellants were named in the Director’s Order on the basis that they were identified as Directors of Huron Concrete.
2Upon filing the appeals, the Appellants requested that the Tribunal schedule a telephone conference call (“TCC”) pursuant to Rules 108 and 109 of the Tribunal’s Rules of Practice to request an interim stay of the Director’s Order and to seek procedural directions in relation to the scheduling of a motion where a stay of the Director’s Order would be requested until the Tribunal issues a final decision on the appeals.
3A TCC was held on January 9, 2015 where the Tribunal was advised that the parties had agreed that an interim stay ought to be granted until a motion for a stay could be heard and determined. At that time, based on the submissions of counsel, the Tribunal granted the interim stay and scheduled a subsequent TCC for February 2, 2015 for the hearing of the motion for a stay.
4During the February 2, 2015 TCC, the parties advised the Tribunal that they had settled the motion for a stay on the basis of a proposed interim order that would, in summary, alter the compliance dates contained in the Director’s Order (conditions 2.1, 2.2, 2.3 and 2.4) and stay the requirement that the Appellants implement the RAP upon receipt of direction from the Director (condition 2.5).
5After reviewing the affidavit of Ian Mitchell, District Engineer with the MOECC, which was filed in support of the interim order and stay sought by the Parties, and after hearing submissions of counsel, the Tribunal granted the request for the stay by order dated February 4, 2015, with reasons to follow. These are the Tribunal’s reasons.
Issues
6The issue is whether the Tribunal ought to grant an interim order and stay as agreed upon by the parties.
Relevant Legislation and Rules of Practice
7The following statutory provisions and Rules of Practice are relevant on this motion.
Statutory Powers and Procedure Act (“SPPA”)
Interim decisions and orders
16.1(1) A tribunal may make interim decisions and orders.
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.
Powers of Tribunal
145.2 (1) Subject to sections 145.3 and 145.4, a hearing by the Tribunal under this Part shall be a new hearing and the Tribunal may confirm, alter or revoke the action of the Director that is the subject-matter of the hearing and may by order direct the Director to take such action as the Tribunal considers the Director should take in accordance with this Act and the regulations, and, for such purposes, the Tribunal may substitute its opinion for that of the Director.
Rules of Practice
Motion Seeking an Interim Stay/Stay or a Removal of a Stay
- The Party shall provide evidence and submissions in support of its motion respecting:
(a) how the relevant statutory tests that are applicable to the granting or removal of a stay are met;
(b) whether there is a serious issue to be decided by the Tribunal;
(c) whether irreparable harm will ensue if the relief is not granted; and
(d) whether the balance of convenience, including effects on the public interest, favours granting the relief requested.
Discussion, Analysis and Findings
8Based on s. 16.1(1) of the SPPA and s. 145.2(1) of the EPA, the Tribunal is satisfied that it possesses the jurisdiction to issue an interim order in relation to a Director’s Order.
9In this instance, the question becomes whether the Tribunal ought to grant an interim order that alters the compliance dates by several weeks necessary for the preparation of the RAP and stay the implementation of the RAP until a decision is rendered by the Tribunal on these appeals.
10In relation to shifting the dates for RAP preparation (conditions 2.1, 2.2, 2.3 and 2.4 of the Director’s Order), the Tribunal views the proposed dates contained in Appendix 1, which have been agreed to by the parties, as reasonable. The length of time sought in the interim order is appropriate to ensure that RAP preparation continues while the appeals remain active, thereby meeting the intent of the EPA that, despite appeals of Director’s orders, work aimed at remedying environmental contamination continues.
11The final matter for resolution is whether the Tribunal should stay the implementation of the RAP under condition 2.5 of the Director’s Order until these appeals are resolved.
12It is necessary for the Tribunal to consider whether there is a statutory bar to the issuance of the stay. Here, the question is whether s. 143(2) or (3) of the EPA operates to bar the issuance of a stay.
13Pursuant to s. 143(2), a stay is not permitted if it involves an order to monitor, record and report, or an order issued under s. 168.8, 168.14 or 168.20 of the EPA. Pursuant to s. 143(3), a stay should not be granted if it can result in danger to human health and safety, impair the environment, or risk injury or damage to property, plants or animals.
14The Tribunal accepts the submissions of counsel for the parties and finds that the statutory bar in s. 143(2) is not engaged by this particular Director’s Order as it does not involve “an order to monitor, record and report, or an order issued under s. 168.8, 168.14 or 168.20 of the EPA.”
15With regards to s. 143(3), Mr. Mitchell of the MOECC stated in his affidavit filed on the motion that in his opinion “a stay of the implementation requirement of the Director’s Order on an interim basis pending completion of the RAP and resolution of the Tribunal appeal would not cause danger to the health or safety of any person; serious risk of impairment of the quality of the natural environment; or result in injury or damage or serious risk of injury or damage to any property or to any plant or animal life.”
16Further, counsel for the Director advised that upon receipt of the RAP, if it becomes apparent to the Director that circumstances have changed and any of the harms or risks described in s. 143(3) are present, the Director will move to have the stay lifted.
17Based on the evidence of Mr. Mitchell and the submissions of counsel, the Tribunal is also satisfied that none of the statutory bars in s. 143(3) of the EPA are applicable in this instance preventing the stay of condition 2.5 of the Director’s Order.
18To conclude, the Tribunal finds that the interim order and stay, as requested by the parties, ought to be granted.
ORDER
19The Tribunal grants the request for a stay and interim order on the conditions agreed upon by the parties contained in Appendix 1 to this order.
Motion for a Stay Granted
Interim Order Issued
“Justin Duncan”
JUSTIN DUNCAN
MEMBER
“Frank Philcox”
Frank philcox
MEMBER
Appendix 1 – Conditions of Stay and Interim Order Agreed upon by the Parties
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Environmental Review Tribunal
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Appendix 1 – Conditions of Stay and Interim Order Agreed upon by the Parties
On consent of the Director and the Appellants, paragraph 2.5 in the Director’s Order is stayed as against the Appellants pending the final resolution of this Appeal.
The dates for completion of the work ordered in this Interim Order may be amended on consent of the Director and the Appellants.
The Director or the Appellants may seek a removal or modification of the Interim Order on 15 days’ notice to the other parties and in accordance with Rule 108 of the Rules of Practice and Practice Directions of the Environmental Review Tribunal.
The Director and the Appellants consent to the terms of this Interim Order and compliance with the terms of this Interim Order shall be without prejudice to any position the parties may take with respect to all or any part of the Director's Order.
Nothing in this Interim Order shall fetter the discretion of the Director to take any regulatory action as may be necessary in the circumstances.
On consent of the Director and the Appellants, paragraphs 2.1 through 2.4 of the Director’s Order are amended as against the Appellants on an interim basis pending the final resolution of this Appeal as follows:
2.1 By no later than February 4, 2015 retain a qualified environmental consultant or engineering firm (Consultant) to prepare and complete the work required by paragraphs 2.2, 2.3, and 2.4 of this order. The Consultant must be licensed member of the Professional Engineers of Ontario, as required by the Professional Engineers Act, R.S.O. 1990, c. P.28 and its regulations or be a licensed member of the Association of Professional Geoscientists of Ontario, as required by the Professional Geoscientists Act, 2000, S.O. 2000, c. 13 and its regulations. The Consultant must have recent experience in work of the type required by this order.
2.2 By no later than February 6, 2015, ensure that the Consultant provides the undersigned Director with written confirmation that the Consultant has been retained by the parties subject to this order.
2.3 By no later than March 20, 2015, ensure that the Consultant completes and submits a Remedial Action Plan (RAP) to the undersigned Director for review. The RAP shall include, but not necessarily be limited to, the following:
(a) a detailed assessment of various options for preventing petroleum hydrocarbons and petroleum hydrocarbon impacted groundwater from migrating off of Site 2 and causing or resulting in an adverse effect; any measures identified shall ensure that any contamination migrating from Site 2 will not cause or result in an adverse effect; and
(b) a detailed schedule for the implementation of the measures proposed as a result of compliance with paragraph 2.3(a) of this order.
2.4 By no later than April 2, 2015, ensure that the Consultant submits to the undersigned Director a finalised written copy of the RAP that is in compliance with paragraph 2.3 of this order and the RAP shall indicate the preferred option.