Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: September 24, 2015
CASE NOS. : 14-098 and 15-001
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellant: N. M. Bartlett Inc. (14-098)
Appellant: James Craig Bartlett (14-099)
Appellant: David Richard Bartlett (14-100)
Appellant: Donald David Peters (14-101)
Respondent: Director, Ministry of the Environment and Climate Change
Subject of appeal: Order to eliminate DDT and its metabolites from creek sediment
Reference No.: 2810-9PNJ5K-1
Property Address/Description: 4509 Bartlett Road Beamsville, Lincoln
Municipality: Niagara
ERT Case No.: 14-098
ERT Case Name: Bartlett v. Ontario (Environment and Climate Change)
PROCEEDING COMMENCED UNDER section 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40, as amended
Appellant: N. M. Bartlett Inc. (15-001)
Appellant: James Craig Bartlett (15-002)
Appellant: David Richard Bartlett (15-003)
Appellant: Donald David Peters (15-004)
Respondent: Director, Ministry of the Environment and Climate Change
Subject of appeal: Order to eliminate DDT and its metabolites from creek sediment
Reference No.: 3581-9PPGL3-1
Property Address/Description: 4509 Bartlett Road Beamsville, Lincoln
Municipality: Niagara
ERT Case No.: 15-001
ERT Case Name: Bartlett v. Ontario (Environment and Climate Change)
Heard: August 31, 2015 by telephone conference call
APPEARANCES:
Parties
Counsel
N.M. Bartlett Inc., James Bartlett, David Bartlett and Donald Peters
Timothy Price
Director, Ministry of the Environment and Climate Change
Nicholas Adamson
DECISION DELIVERED BY HEATHER GIBBS
REASONS
Background
1These are appeals by N.M. Bartlett Inc., James Bartlett, David Bartlett and Donald Peters (“Appellants”) from the decisions of the Director, Ministry of the Environment and Climate Change (“MOECC”) to issue two orders under s. 157.3(5) of the Environmental Protection Act (“EPA”) and s. 16.4(5) of the Ontario Water Resources Act: Director’s Order No. 2810-9PNJ5K-1, dated November 27, 2014, and Director’s Order No. 3581-9PPGL3-1, dated December 16, 2014 (the “Orders”). The Orders require the Appellants to take various steps to address dichlorodiphenyltrichloroethane (“DDT”) pesticide and metabolite contamination allegedly originating from a property known municipally as 4509 Bartlett Road, Beamsville, Lincoln, Regional Municipality of Niagara and entering Bartlett Creek.
2Following the preliminary hearing on April 17, 2015, the parties entered into settlement discussions. The discussions were successful and the parties have agreed to the terms listed in Appendix A that amend the Director’s Order. The preamble to the Settlement Agreement succinctly states the facts and relevant issues involved.
Relevant Legislation and Rule
3The relevant legislation and rule are the following:
- (1) The purpose of this Act is to provide for the protection and conservation of the natural environment.
Rules of Practice of the Environmental Review Tribunal
- 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
4The issue is whether the Tribunal should accept the proposed settlement pursuant to Rule 201.
Discussion, Analysis and Findings
5The Appellants were content to undertake remediation as ordered by the Director of those portions of Bartlett Creek that run through their property. A drawing of the Creek Diversion Plan was submitted to the Director by the Appellants’ consultants. However, shortly thereafter it became clear to the Appellants that a small portion of Bartlett Creek included in the drawing (referred to in the Settlement Agreement as the “Triangle”) is not on their property. A revised drawing of the Creek Diversion Plan was then sent to the Director that did not include the Triangle.
6The Parties agreed that the Orders under appeal would be limited to the portion of the Creek included in the revised Creek Diversion Plan drawing. In addition, the Parties agreed to modify compliance dates in the Orders, to better reflect the steps required to be taken.
7The Parties submitted that the amendments to the Director’s Order, as described in the Settlement Agreement attached as Appendix A, should be accepted by the Tribunal under Rule 201 as consistent with the purpose and provisions of the EPA, and in the public interest.
8No Participants or Presenters were added in this appeal.
9The Tribunal finds that the terms of the Settlement Agreement that alters the decision of the Director are consistent with the purpose and provisions of the EPA and in the public interest for the following reasons. By amending the Order under appeal, the Parties ensure that the remediation of the portion of Bartlett Creek within the revised Remediation Plan drawing, which the Appellants consent to undertake, will occur within the time period outlined in the Settlement Agreement. The amended time limits are considered reasonable by all Parties. The Director advised that no historical sampling for DDT or its metabolites has occurred at the Triangle itself, or immediately upstream of the Triangle. The Director advised that she will conduct sample testing in these areas, independent of the work in the Order under appeal. The Settlement Agreement does not prevent the Director from issuing a further order, should results show a need to remediate that portion of the Creek.
DECISION
10Pursuant to Rule 201, the Tribunal accepts the proposed settlement and amends the Director’s Order as set out in Appendix 1. The appeals are withdrawn and dismissed.
Settlement Agreement Accepted
Director’s Order Amended
Appeals Withdrawn
Appeals Dismissed
“Heather I. Gibbs”
HEATHER I. GIBBS
VICE-CHAIR
Appendix 1 – Minutes of Settlement
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
Appendix 1
Minutes of Settlement