Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: April 2, 2015
CASE NO.: 14-093
PROCEEDING COMMENCED UNDER section 139(2)(a) of the Environmental Protection Act, R.S.O. 1990, c.E.19, as amended
Appellant: Desrosiers Geothermal Drilling Corporation
Respondent: Director, Ministry of the Environment and Climate Change
Subject of appeal: Suspension of an Environmental Compliance Approval Permit regarding the construction, alteration, extension or replacement of Vertical Closed Loop Ground Source Heat Pumps throughout Ontario
Reference No.: 8270-8XTPR4
ERT Case No.: 14-093
ERT Case Name: Desrosiers Geothermal Drilling Corporation v. Ontario (Environment and Climate Change)
Heard: March 9, 2015 in Toronto, Ontario
APPEARANCES:
Parties
Desrosiers Geothermal Drilling Corporation
Counsel
Peter Verbeek
Parties
Director, Ministry of the Environment and Climate Change
Counsel
Isabelle O’Connor
DECISION DELIVERED BY L.M. BRUCE AND HUGH S. WILKINS
REASONS
Background
1On September 5, 2012, Katrina Chrzanowska, Director, Ministry of the Environment and Climate Change, issued Environmental Compliance Approval No. 8270-8XTPR4 (the “ECA”) to Desrosiers Geothermal Drilling Corporation (the “Appellant”). The ECA permitted the Appellant to install vertical closed loop ground source heat pumps throughout Ontario. A ground source heat pump system is used to help reduce the costs of heating and cooling a building. With pipes drilled in the ground, it takes heat from the ground in the winter to provide heating and transfers heat from the building into the ground in the summer to provide cooling.
2On November 4, 2014, the Director issued a Notice of Suspension suspending the Appellant’s ECA. The Notice of Suspension was issued pursuant to s. 20.7 and 20.13(c) of the Environmental Protection Act (“EPA”).
3The Appellant filed a Notice of Appeal with the Environmental Review Tribunal (the “Tribunal”) on November 6, 2014 regarding the Notice of Suspension.
4On November 18 and 19, 2014, telephone conference calls (“TCCs”) were held to address the scheduling of the appeal. During the calls, the parties stated that they had reached a tentative settlement agreement, which included the withdrawal of the appeal, the revocation of the Notice of Suspension and the issuance of an amended ECA and amended workplan.
5Under s. 3(3) of Ontario Regulation 98/12 on Ground Source Heat Pumps, an application for an ECA relating to the construction, alteration, extension or replacement of vertical closed loop ground source heat pumps must include a work plan. The parties have prepared a draft amended ECA and amended workplan, which are intended to be read and implemented together. Both were brought to the Tribunal’s attention for consideration in the context of the Tribunal’s approval of the proposed settlement. The draft amended ECA and amended workplan as contemplated under the proposed settlement are attached to this Decision as Appendices A and B.
6At the TCC on November 19, 2014, the Tribunal ordered a conditional stay of the Notice of Suspension, on consent, until the disposition of the appeal. This was to allow time for a preliminary hearing so as to provide an opportunity for any interested members of the public to seek status to participate in the proceeding, and if granted status, to provide input to the Tribunal on the proposed settlement.
7On January 12 and March 9, 2015, a preliminary hearing was held in Toronto. The Director filed written submissions with the Tribunal on March 6, 2015 and the Appellant provided written submissions at the preliminary hearing on March 9, 2015 concerning the proposed settlement and whether it conforms to Rule 201 of the Tribunal’s Rules of Practice. No member of the public sought status to participate.
Relevant Legislation and Tribunal Rules
8The relevant legislation and the Tribunal’s Rules of Practice are set out below:
3(1) The purpose of this Act is to provide for the protection and conservation of the natural environment.
20.7 (1) In exercising any of his or her powers under this Part, whether on his or her own initiative or on application, the Director may exercise the power if he or she considers it to be necessary for the purposes of,
(a) this Act, if the power is exercised in respect of an activity for which an environmental compliance approval is required under section 9 or 27; or
(2) The Director may suspend, revoke or refuse to issue an environmental compliance approval if the past conduct of the holder of the approval or the applicant, or, if the holder or applicant is a corporation, of its officers and directors, affords reasonable grounds to believe that the person will not engage in the activity in accordance with this Act, the Ontario Water Resources Act or the regulations made under either of those Acts.
20.13 The Director may, on his or her own initiative,
(c) suspend or revoke all or part of an environmental compliance approval.
Rule
- Where there has been a proposed withdrawal of an appeal as part of a settlement agreement not objected to by any Party that alters the decision under appeal, the Tribunal shall review the settlement agreement and consider whether the agreement is consistent with the purpose and provisions of the relevant legislation and whether the agreement is in the public interest. The Tribunal shall also consider the interests of Participants and Presenters. After consideration of the above factors, the Tribunal may decide to continue with the Hearing or issue a decision dismissing the proceeding.
Issue
9The issue is whether the proposed settlement is consistent with the purpose and provisions of the EPA and in the public interest, and whether the hearing should be continued or the proceeding dismissed, in accordance with Rule 201.
Discussion, Analysis and Findings
10The substance of the parties’ settlement agreement is found in the draft amended ECA and amended workplan set out in Appendices A and B to this Decision. The parties confirmed that they agree with the terms of the draft amended ECA and amended workplan. They stated that, if the Tribunal accepts the wording in the draft amended ECA and amended workplan, the Appellant would withdraw its appeal and the Director would revoke the Notice of Suspension and issue the approval.
11The Director raised a concern that the Tribunal does not have jurisdiction to require the continuation of a proceeding which the parties have agreed to conclude, as envisioned under Rule 201. In any event, the Director made submissions to assist the Tribunal in its application of the Rule. No further submissions were made by either party regarding the Tribunal’s jurisdiction. On this point, the Tribunal notes that its decisions in Giampaolo v. Ontario (Ministry of the Environment), [2010] O.E.R.T.D. No. 35 and Johnson v. Ontario (Ministry of Environment), [2006] O.E.R.T.D. No. 5, among others, address this issue and affirm the Tribunal’s jurisdiction in these situations.
12Based on Rule 201, the Tribunal must determine whether the proposed agreement is consistent with the purpose and provisions of the EPA and whether the proposed agreement is in the public interest. It must also consider the interests of participants and presenters. The purpose of the EPA, as set out in its s. 3, is to provide for the protection and conservation of the natural environment. Other relevant provisions in the EPA are ss. 20.7(2) and 20.13(c), which are, among other things, to ensure compliance with the requirements of the EPA and its regulations.
13The Director stated that the Appellant’s past non-compliance is largely due to insufficient training, lack of oversight and an inadequate workplan. The Director submitted that each of these issues has been addressed through the amended ECA and amended workplan. The Director reviewed the draft provisions of the amended ECA, highlighting that they apply additional obligations beyond those set out in standard ECAs of this type and include provisions providing additional training, oversight, notification, reporting and financial assurance requirements. The Director submitted that adherence to these new provisions and those in the amended workplan will ensure that the Appellant complies with the EPA and Ontario Regulation 98/12.
14The Appellant supported the Director’s submissions on the proposed settlement’s consistency with the purpose and provisions of the EPA and the public interest.
15On the basis of the parties’ submissions that the provisions of the amended ECA and amended workplan address the deficiencies in the original ECA and workplan, and upon review of those provisions, the Tribunal finds that the amended ECA and amended workplan are consistent with the purpose of the EPA to provide for the protection and conservation of the natural environment and are consistent with ss. 20.7 and 20.13(c) of the EPA.
16The Tribunal finds that the amended ECA and amended workplan strengthen the provisions of the existing ECA and workplan and that the settlement is consistent with the purpose and provisions of the EPA and is in the public interest. Opportunities were provided to the public to seek status in this matter and make submissions regarding the proposed settlement, but no such requests were received.
DECISION
17The Tribunal accepts the withdrawal of the appeal pursuant to the settlement proposed by the Parties and dismisses the appeal.
Settlement Agreement Accepted
Appeal Dismissed
“L. M. Bruce”
L.M. BRUCE
MEMBER
“Hugh. S. Wilkins”
HUGH S. WILKINS
MEMBER
Appendix A - Draft Amended Environmental Compliance Approval
Appendix B - Draft Amended Workplan
If there is an attachment referred to in this document,
please visit www.elto.gov.on.ca to view the attachment in PDF format.
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