Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: May 5, 2015
CASE NO(S).: 14-049, 14-050
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c.E.19, as amended
Appellant: GP Empire Communities (Niagara) Ltd. (ERT Case No. 14-049)
Appellant: Oakville Hydro Energy Services Inc. (ERT Case No. 14-050)
Respondent: Director, Ministry of the Environment and Climate Change
Subject of appeal: Order to perform work with respect to a heat pump bore hole
Reference No.: 2863-9KXQ7P
Property Address/Description: 7667 Goldenrod Trail
Municipality: Niagara Falls
Upper Tier: Regional Municipality of Niagara
ERT Case Nos.: 14-049/14-050
ERT Case Name: GP Empire Communities (Niagara) Ltd. v. Ontario (Environment and Climate Change)
Heard: In writing
APPEARANCES:
Parties GP Empire Communities (Niagara) Ltd Counsel Sara Premi
Parties Oakville Hydro Energy Services Inc. Counsel Rick F. Coburn and Aimee Collier
Parties Director, Ministry of the Environment and Climate Change Counsel Danielle Meuleman
DECISION DELIVERED BY MARCIA VALIANTE AND HUGH S. WILKINS
REASONS
Background
1In the spring of 2014, GP Empire Communities (Niagara) Ltd. (“Empire”) retained Oakville Hydro Energy Services Inc. (“OHESI”) to install a geothermal heating system at a new home at 7667 Goldenrod Trail in a new residential subdivision developed by Empire in Niagara Falls (the “Site”). OHESI engaged Desrosiers Geothermal Drilling Corporation (“Desrosiers”) to drill two holes on the Site and install a vertical closed loop ground source heat pump apparatus in the holes. At the time, Desrosiers was authorized to carry out this work pursuant to Environmental Compliance Approval No. 8270-8XTPR4, issued September 5, 2012 by the Ministry of the Environment and Climate Change (“MOECC”).
2Desrosiers completed its work and the system became operational in May of 2014. However, on May 21, 2014, David Desrosiers, a principal of Desrosiers, informed the MOECC that natural gas was leaking from the holes it had drilled. Staff of the MOECC inspected the Site and monitored for gas releases. During the week of May 27, 2014, Desrosiers attempted to decommission the two holes. Follow-up inspections were carried out by MOECC staff in early June, and it was determined that gas was still being released from one hole (the “North Bore Hole”). On June 12, 2014, Paul Widmeyer, a Provincial Officer with the MOECC, issued Provincial Officer’s Order No. 2863-9KXQ7P (the “Provincial Officer’s Order”) to Desrosiers, OHESI and Empire, pursuant to s. 157.1 of the Environmental Protection Act (“EPA”) requiring monitoring of the Site and proper decommissioning of the North Bore Hole. On June 17, 2014, Empire and OHESI asked the Director to review the Provincial Officer’s Order in accordance with s. 157.3 of the EPA. In a letter dated June 23, 2014, the Director confirmed the Provincial Officer’s Order (the “Director’s Order”), and OHESI and Empire each appealed the Director’s Order to the Environmental Review Tribunal (“Tribunal”) on July 8, 2014. Desrosiers did not request a review by the Director.
3Beginning on July 15, 2014, the Tribunal held regular telephone conference calls (“TCCs”) with the parties regarding their ongoing discussions on the development and implementation of a plan to properly decommission the North Bore Hole. During the TCCs, the parties continued to express the common hope that the matter could be resolved and that a hearing of the appeals would likely not be necessary. As a result, the Tribunal agreed not to convene a preliminary hearing until it was known whether the matter could be resolved.
4In August and September 2014, OHESI’s consultant SPL Consultants Limited (“SPL”) prepared a new decommissioning plan, which the Director approved in September. SPL led the project team that carried out the work to decommission the North Bore Hole and to test and monitor the Site, in accordance with the plan. The work was carried out in the fall and winter of 2014. A report of this work was provided to the MOECC on January 16, 2015. The Director subsequently indicated that the MOECC was satisfied that the North Bore Hole had been properly decommissioned and that the Provincial Officer’s Order had been substantially complied with.
5A separate concern with respect to the second bore hole arose and resulted in a second Provincial Officer’s Order being issued to carry out similar remedial work, but to Desrosiers and OHESI only, on February 20, 2015. OHESI requested a review of that order by the Director, who confirmed it. OHESI appealed that order to the Tribunal on March 12, 2015 (Case No. 15-017). That appeal is not the subject of this decision.
6On April 10, 2015, Empire and OHESI wrote to the Tribunal indicating that they proposed to withdraw their appeals in Case Nos. 14-049 and 14-050, respectively, and that the Director’s Order was not altered by the proposed withdrawals. OHESI indicates that it is prepared to withdraw its appeal, provided that it is without prejudice to its ongoing appeal in Case No. 15-017. The Director agrees to the proposed withdrawals of these appeals on this basis.
Issue
The issue is whether the proposed withdrawals of the appeals should be accepted and the appeals dismissed.
Relevant Rules
7Rules of Practice of the Environmental Review Tribunal:
Termination of Proceedings
A Proponent or Applicant who proposes to withdraw his or her application, an Appellant who proposes to withdraw his or her appeal, or a Director, a Risk Management Inspector or Official or a municipality who proposes to revoke the decision that is the subject of the appeal shall notify the Tribunal, other Parties, Participants and Presenters by letter. Any Party, Participant or Presenter who objects to the proposed withdrawal of an appeal or revocation, with the exception of the revocation of an order made under section 74 of the Ontario Water Resources Act, shall notify the Tribunal and the other Parties, Participants and Presenters within ten days of the date of the letter.
Where there has been a proposed withdrawal of an appeal agreed to by all Parties and the decision under appeal is not altered by a settlement agreement, a proposed withdrawal of an application, or a proposed revocation of an order made under section 74 of the Ontario Water Resources Act, the Tribunal shall issue a decision dismissing the proceeding.
Discussion, Analysis and Findings
8By operation of Rule 199, the Tribunal shall dismiss an appeal where there has been a proposed withdrawal that has been agreed to by all parties, and the decision under appeal is not altered.
9The parties have confirmed with the Tribunal in writing that they consent to the withdrawal of the appeals in Case Nos. 14-049 and 14-050, and that the Director’s Order under appeal is not altered in any way.
10On the basis of what the parties have stated and their agreement, the Tribunal finds that Rule 199 applies. The Tribunal accepts the withdrawals and dismisses the appeals.
DECISION
11The appeals of the Director’s Order confirming Provincial Officer’s Order 2863-9KXQ7P, brought by Empire (Case No. 14-049) and OHESI (Case No. 14-050), are dismissed.
Appeals Withdrawn
Appeals Dismissed
“Marcia Valiante”
MARCIA VALIANTE
MEMBER
“Hugh S. Wilkins”
HUGH S. WILKINS
MEMBER
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