Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: October 26, 2015

CASE NO.: 14-039

PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended

Appellant: Alex Krek

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Order issued under sections 157.3(5)(b) and 157.3(6) of Environmental Protection Act to retain a consultant to prepare and complete all specified work respecting assessment and remediation of petroleum impact and ground water from a spill.

Reference No.: 6527-9HBQB9-DO

Property Address/Description: 1033 Bayview Point Road

Municipality: Lake of Bays

Upper Tier: Muskoka

ERT Case No.: 14-039

ERT Case Name: Krek v. Ontario (Environment and Climate Change)

Heard: September 16, 2015 by teleconference and in writing

APPEARANCES:

Parties	Counsel/Representative+
Alex Krek	Dennis O’Leary
Director, Ministry of the Environment and Climate Change	Sylvia Davis
Dianne Klein	Self-represented
Dieter Knoppke	John Buhlman
Thomas and Ingeborg Sickinger	Thomas Sickinger+

Participant	Counsel/Representative+
Henry Fischler	Self-represented

ORDER DELIVERED BY JUSTIN DUNCAN AND HEATHER I. GIBBS

REASONS

Background

1On September 29, 2015 the Environmental Review Tribunal (the “Tribunal”) granted a motion by the Director, Ministry of the Environment and Climate Change (“MOECC”) to adjourn the hearing in this matter, and adjourned the hearing to a teleconference to take place November 9, 2015. These are the Tribunal’s reasons.

2The background to this appeal can be found in an earlier order of the Tribunal dated July 31, 2015. Briefly, on May 6, 2014, the Director issued Director’s Order No. 6527-9HBQB9-DO (“Director’s Order”) requiring Alex Krek (the “Appellant”) to retain a consultant to prepare and complete specified work respecting assessment and remediation of petroleum impact on ground water from a spill that took place in 1990 at a site located at 1033 Bayview Point Road (“BPR”), Dorset, Lake of Bays, in the District Municipality of Muskoka, Ontario (the “Krek property” or “1033 BPR”). The Director’s Order requires work to be undertaken in respect of properties neighbouring 1033 BPR, to address what was assumed to be a migration of contamination consisting of heating oil from 1033 BPR to these neighbouring properties. In summarizing the complex background to this appeal, counsel for the Appellant noted that in July 1998, a water supply well was constructed on the Sickinger properties south of 1033 BPR and was found to be contaminated with petroleum hydrocarbons.

3Mr. Krek appealed the Director’s Order on May 20, 2014. The Tribunal added a number of neighbours as parties and participants in the appeal, including Dieter Knoppke (party), who owns property to the north of the Krek property, and the Kleins (party), Fischlers (party status later converted to participant status), and Sickingers (party), whose properties are to the south.

4The appeal was scheduled to be heard on October 16, 19, 20, 21 and 23, 2015.

5On August 27, 2015, counsel for the Director informed the parties that the original hydrogeologist on this file had gone on long-term leave, and provided the parties with copies of expert opinions from two MOECC hydrogeologists new to the file: Myron Zurawsky dated August 27, 2015 (the “Zurawsky report”) and Christopher Munro dated August 21, 2015 (the “Munro report”). The reports cast doubt on the assumption that the source of the contamination at the Sickinger well is the spill which occurred at the Krek property. The Director indicated that further delineation of the area between the Krek and Sickinger properties is being undertaken, and that this work was not contemplated in the Director’s Order under appeal.

6The Director asked for an adjournment of the hearing until November 30, 2015, and listed of number of interim steps that would be taken. The Appellant consented to the adjournment. The other parties and participant opposed the adjournment.

7For the reasons outlined below, the Tribunal granted an adjournment of the hearing in this matter in an order dated September 29, 2015.

Relevant Legislation and Rules

8Tribunal Rules of Practice

A Party seeking an adjournment shall provide evidence and submissions in support of the motion respecting:

(a) whether the other Parties consent to the request and the date suggested for the commencement or continuation of the Hearing;

(b) detailed reasons for the request, including, if appropriate, affidavit evidence;

(d) any urgency for the request because of the public interest;

(e) any inconvenience to other Parties, Participants and Presenters due to the adjournment; and

(f) any other factors relating to the considerations listed in Rule 105.

In deciding whether or not to grant a request for an adjournment, the Tribunal may consider:

(a) the interests of the Parties in a full and fair Hearing;

(b) the interests of others potentially affected by the matters before the Tribunal who, after notification of the Hearing, may have arranged their affairs in the expectation of observing or participating in the Hearing;

(d) the circumstances giving rise to the need for an adjournment;

(e) the timeliness of the request for the adjournment;

(f) the position of the other Parties on the adjournment request;

(g) whether an adjournment will cause or contribute to any existing or potential risk of environmental harm;

(h) the consequences of an adjournment, including expenses to other Parties;

(i) the effect of an adjournment on Participants and Presenters;

(j) the public interest in the delivery of the Tribunal’s services in a just, timely and cost effective manner; and

(k) whether the proceeding before the Tribunal is an appeal of a renewable energy approval under section 142.1 of the Environmental Protection Act.

If the request for an adjournment is based upon the need for environmental testing or other similar events, the adjournment order, if it is granted, shall be to a set date and may include a requirement for periodic progress reports to the Tribunal.
In granting an adjournment, the Tribunal may impose such conditions as it considers appropriate.

Environmental Protection Act

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.

Discussion

Submissions of the parties

9The Director pointed out that the Director’s Order under appeal directs Mr. Krek to undertake work to delineate the spill south of the Klein and Fischler properties. The Director’s Order affirms a Provincial Officer’s order which “was issued on the assumption that the fuel oil spill at the Krek property had contaminated the groundwater under a property owned by Mr. and Mrs. Sickinger. In coming to this conclusion, MOECC staff relied on the Conceptual Site Model provided by Mr. Krek’s qualified consultant.”

10However, the Director submitted that the new information, coming as it does from two respected MOECC hydrogeologists, puts into question the assumption underlying the Director’s Order, that the spill from the Krek property has migrated below the Klein and Fischler properties and contaminated the Sickinger properties. There are no monitoring wells on the Klein and Fischler properties. The Director submitted that:

For the purpose of confirming the actual direction and extent of the contaminant plume, it is the Director’s position that delineation of the fuel oil spill must commence immediately south of the Krek property, not south of the Sickinger property as required by the order. As well, until it is determined whether the Krek spill has affected the groundwater on the Klein, Fischler and Sickinger properties, the portions of the current Director’s Order regarding provision of a lake based water supply and long term monitoring and reporting are premature.

11The Director points out that she has no jurisdiction to order Mr. Krek to address contamination at the Sickinger property if that contamination is not somehow connected to the spill at the Krek property.

12The Director proposed a work plan during the time of the adjournment as follows:

Technical staff for MOECC and Mr. Krek will meet before October 2, 2015;
Mr. Krek’s qualified consultant will provide a proposal for a work plan and schedule before October 16, 2015;
The MOECC will provide technical comments on the work plan and schedule by October 23, 2015; and
If no agreement on a work plan and schedule has been reached by October 31, 2015 the MOECC will issue an order regarding delineation.

13The MOECC suggests hearing dates could be scheduled for late November or early December, 2015

14The Director submitted that adjourning the hearing:

… will not affect the continued provision of drinking water to the Sickingers, (pursuant to the earlier outstanding order). The adjournment will also not result in an automatic stay of the order. To date, Mr. Krek has provided monitoring, sampling and removal of free phase contamination to the satisfaction of the Director and it is to be hoped that this will continue.

15The Director submitted that if no adjournment is granted, the Director “would be unable to defend her order and would likely take the position that it should be withdrawn as premature”, in which case a new order would be required if the Krek spill were to be found to be responsible for contamination of the Sickinger property, further delaying resolution of these issues.

16The Director further submitted that the Tribunal’s remedial powers do not result in its being free to amend the order to require delineation immediately south of the Krek Property, as suggested by counsel for Mr. Knoppke. Rather, the Director submitted that the Tribunal’s broad remedial powers are limited to those actions of the Director which are “the subject-matter of the hearing”. The Director referred to the Tribunal’s order in this appeal of July 31, 2015 where it clarified the subject-matter of the appeal. The Director submitted that the Director’s Order in this case “specifically excludes delineation north of the Sickinger Property. The Notice of Appeal does not raise the issue of delineating north of the Sickinger Property. This issue is, therefore, outside the subject-matter of the hearing and so outside the Tribunal’s jurisdiction to consider.”

17The Director submitted that her suggested approach:

…maintains a tight timeline, reducing as much as possible the prejudice to the other parties, while also maintaining the integrity of the Tribunal’s process and the public interest in the delivery of the Tribunal’s services in a just, timely and cost effective manner. It also ensures compliance with Tribunal Rule 106 by providing a set schedule for the adjournment.

18The Appellant consented to the adjournment. He submitted that a delineation requirement starting at the Krek property is different and beyond what was contemplated by the Director’s Order under appeal. The Appellant submitted that neither Mr. Krek nor his consultants have had an opportunity to consider what steps might be appropriate following the very recent MOECC reports.

19The Appellant submitted that it would be futile to move forward with a hearing that may ultimately not be necessary, and in addition will delay the MOECC and the Appellant “from being able to address this new development.” He submitted it would be procedurally unfair to the Appellant to proceed to a hearing in respect of an issue that was not identified in the first instance and not contemplated by the Director’s Order under appeal; i.e, the particulars of what further work the MOECC is contemplating.

20The Appellant submitted that the circumstances are unique in that the Appellant supports the Director’s request for an adjournment. Counsel submitted that Mr. Krek has agreed to cooperate with the MOECC to meet and discuss what delineation steps should be undertaken on a voluntary basis, which is in the public interest. Further, he submitted that the adjournment is necessary for the parties to ensure a full and fair hearing as they need to consult their experts to respond to the new information, which goes to the key assumption underpinning the Director’s Order against Mr. Krek.

21The Appellant submitted that there is no evidence an adjournment will cause or contribute to any existing or potential risk of environmental harm, and will not prejudice any of the parties or result in increased cost to them. The Appellant submitted that the adjournment would permit the delivery of the Tribunal’s services in a just, timely and cost effective manner as it may result in a shorter hearing, or avoid a hearing altogether.

22The Appellant also consented to an adjournment because his hydrogeologist has recently retired, and he requires time to retain a new expert to review the reports and get “up to speed” on the extensive file.

23Mr. Knoppke, through his counsel John Buhlman, took the position that an adjournment is not necessary and will erode public confidence in the appeal process. He argued that the new hydrogeological reports “do not modify in a significant way the requirement of the order to delineate the lateral extent of the plume from the spill on the Krek property.” He argued that the reports do not suggest that the contamination on the Knoppke property was caused by anything other than the Krek spill. He submitted that the Zurawsky and Munro reports “basically state that the conclusion in the Provincial Officer’s Report should only be modified to delete the words ‘to the south of the property located at 1025 Bayview Point Road’ and insert the words ‘to the south of the Krek property.’” Mr. Knoppke submitted that the evidence at the hearing would be the same in any event, and that the Tribunal could use its broad remedial powers under s. 145.2(1) of the Environmental Protection Act (“EPA”) to alter the Director’s Order as required. He argued that the Tribunal has the power to alter the Order to require that the delineation start further north, relying on RPL Recycling & Transfer Ltd. v. Ontario (Director, Ministry of the Environment) (2006), 21 C.E.L.R. (3d) 80 at para. 20, and Associated Industries Corp. v. Ontario (Director, Ministry of the Environment) (2008), 40 C.E.L.R. (3d) 101 at para. 64 (“Associated Industries Corp.”).

24With respect to the Appellant’s request for an adjournment on the basis that his expert, Mr. Beck, has retired, Mr. Knoppke noted that this was first raised during a teleconference on September 16, 2015. Mr. Knoppke argued that Rules 104(b) and 104(c) require a party requesting an adjournment to provide detailed reasons for the request. Mr. Knoppke argued that the Appellant has not done so, and it is, therefore, impossible to determine whether Mr. Krek needs the adjournment to address the new opinions and to ensure a full and fair hearing (Rule 105(a)). Mr. Knoppke noted that Stantec, the company for which Mr. Beck worked prior to retirement, is large and could presumably provide another hydrogeologist on fairly short notice.

25Mr. Knoppke argued that the Director’s plan for moving forward will not ensure integrity of the Tribunal’s process, and will put the enforcement of the EPA into question. He argued that the history of orders in this longstanding matter demonstrates a recurring pattern of delay, whereby “there will be delays in discussions, the Provincial Officer will issue an order, Mr. Krek will request a review by the Director, who will confirm the order and Mr. Krek will appeal the order.” He argued that adjourning the hearing of such a “long and tortuous” matter when no adjournment is required is contrary to procedural integrity.

26With respect to protection of the environment (Rule 105(g)), Mr. Knoppke argued that there is a continuing risk that free product is migrating to the lake. He submitted that the Director’s Order under appeal forms part of the “iterative process” between the Director and the Appellant, which needs to continue without delay with the delineation required by this Director’s Order.

27Mr. Knoppke argued that issues 1, 2(a), 2(b) and 4 from the Amended Issues List appended to the Tribunal’s September 18, 2015 order, remain the same regardless of whether the contamination on the Sickinger property originated form the spill on the Krek property or from some other source. Items 6, 7 and 8 of the Director’s Order require delineation on the Krek property, which Mr. Krek has appealed.

28Similar to Mr. Knoppke, the Kleins and Sickingers objected to an adjournment on the basis that it is not needed. They argued that the two new MOECC reports cite the “lack of information critical to understanding this site”, which “is nothing new and in fact was an underlying reason for issuing the 2009 Provincial Officer’s Order.” They argued that:

[I]n light of the expert opinions of: the MOECC, Mr. Munro; WESA; Dr. Hallett and Eric Veska, the author of the May 17, 2010 SCM, all agree further delineation is necessary, and specifically at the original spill site. Delineation has been the subject of all four of the Provincial Officer’s Orders and all four of the Director’s Orders issued to date. Yet, to-date nothing has been done since the issuance of the any of the Orders.

29They further argued that there is evidence of harm being done to the natural environment as the wells on Mr. Krek’s property “continue to have significant levels of free phase as confirmed by Stantec (Mr. Krek’s own expert) on September 26th, 27th, 2014 and May 2015.” They submitted that Mr. Krek does not dispute the original spill in 1990 and there is no reason why the delineation should not start on his property. They argued that delineation toward the lake should not be delayed. They also pointed out orally that no other source has been identified for the contamination of the Sickinger well.

30The participant Mr. Fischler argued, among other things, that an adjournment is unnecessary and that the Director’s reports do not change the need to ensure full delineation of the spill. Further, he argued that an adjournment could result in harm to the environment by allowing the spill to continue to migrate and that allowing the adjournment runs contrary to the Tribunal Rule 105(g).

Analysis and Findings

31The Tribunal finds that, in balancing the factors for considerations under Rule 105, an adjournment is warranted.

32The parties expressed opposing views on whether the Tribunal has jurisdiction to continue with the hearing in relation to delineation toward the lake and south of the Krek property, and to fashion a remedy relating to this area.

33It is clear that the Tribunal has broad remedial jurisdiction in an appeal under s. 145.2 of the EPA to substitute its opinion for that of the Director. The panel agrees with the passage of Associated Industries Corp. cited by counsel as follows:

64 … Put another way, the Tribunal stands in the shoes of the Directors in deciding the appropriate course of action under section 39(2) of the EPA. The Tribunal will not focus on determining whether the Directors reasonably reached their conclusions based on the evidence that they had available to them at the time of their decisions. Rather, the Tribunal will examine that evidence as well as all of the additional evidence from the Hearing to determine anew whether the CofA should be revoked according to the public interest ground set out in section 39(2)(e). The Tribunal should exercise its discretion under that section, and section 145.2, based on the totality of the evidence, regardless of what the Directors decided previously.

34The Director’s Order requires four types of work:

A vapour mitigation assessment for 1025 and 1027 BPR (Items 3-5). (The Director is of the view that this has been satisfied so it is no longer under appeal.)
An environmental investigation program (Items 6-8), described in s. 5 of the Provincial Officer’s Order as follows:

5.1 I am of the opinion based on the above, that additional environmental investigation work (“Environmental Investigation Program”) is required in order to determine the lateral extent of petroleum hydrocarbon ground water impacts towards the lake from the Spill area and to the south of the property located at 1025 Bayview Point Road.

A Lake-based potable water supply for 1025, 1027, 1029 and 1031 BPR (Items 9-11).
Long-term monitoring and reporting program (Items 12-14).

35It is clear that the Director’s Order includes the requirement to undertake an environmental investigation program that includes impacts towards the lake. With regard to delineation of the spill immediately south of the Krek property, the Tribunal finds that the question of whether such delineation is included in the subject matter of this appeal is not one that needs to be determined in this adjournment motion. Assuming, without deciding, that delineation immediately south of the Krek property falls within the subject matter of the appeal, the Tribunal agrees with Mr. Knoppke’s submissions that the Tribunal should examine the available evidence to determine whether an adjournment is necessary and appropriate, following a consideration of the factors listed in Rule 105.

Rule 105 Considerations

36To begin, the Tribunal notes that an adjournment request is not synonymous with a request to stay the Director’s Order. The Director’s Order will remain in effect during the period of the adjournment of the hearing.

37There is no question that the recent MOECC reports were unexpected and unforeseeable. Counsel for the Director raised the issue and the request for adjournment immediately upon becoming aware of the new opinions contained in those reports.

38The overriding factor in this adjournment request is 105(a), the interests of the parties in a full and fair hearing. Both of the statutory parties to the appeal agree that they will be unable to present key hydrogeological evidence in support of, or against, the Director’s Order if the hearing proceeds as scheduled. The new opinions contained in the two MOECC reports cast doubt on the fundamental assumption underpinning the Director’s Order that Mr. Krek be responsible to undertake the work ordered. The Tribunal agrees that a short adjournment is required to allow the hydrogeologists to meet and for the Director to determine whether she wishes to proceed with the current Director’s Order, or issue a new one based on updated information.

39The Tribunal also finds that an adjournment is in the public interest. Proceeding with an appeal of a Director’s Order that is so fundamentally in question is not an efficient use of public resources. As noted above, there is currently no stay in place of the Director’s Order. The public interest is also served through protection of the environment, and in this case an adjournment will ensure that the existing environmental protection requirements contained in the Director’s Order will remain in effect, while they may not be in place should the hearing proceed and the Director’s Order be withdrawn. For this reason the Tribunal finds that adjourning the hearing to a teleconference in the near future, pursuant to Rule 106, while the Director and Mr. Krek’s experts prepare a delineation work plan is the most effective alternative to reduce the risk of harm to the environment. The Director and Mr. Krek have been working cooperatively to come to a resolution, and there is every reason to believe this will continue. Adjourning the hearing will allow the Director time to meet with the experts and consider alternatives that will best protect the environment going forward, and ensure that any work ordered is within the Director’s jurisdiction. The Tribunal is, therefore, satisfied that adjourning this hearing will not result in additional negative impacts on the environment.

40The Tribunal is also satisfied that adjourning the hearing will save all of the parties the expense involved in appearing at a multi-day hearing, when the underlying scientific evidence, upon which the Director’s Order is based and which would form a large part of the Tribunal’s considerations, is in a state of flux.

41The Appellant and the Director consent to the adjournment. The Tribunal is cognizant of the fact that the other parties and the participant oppose the adjournment, and that they are extremely frustrated with the “long and tortuous” history of the clean-up. However, the Tribunal must have regard for the subject matter of the particular appeal before it. Unlike a court, the Tribunal has no inherent jurisdiction to make orders derived from the wider circumstances of a case. Having regard to the adjournment considerations listed in Rule 105, it is clear that the benefits of adjourning this appeal of this Director’s Order, outweigh any drawbacks.

42In making its finding, the Tribunal has not considered the Appellant’s reference to the fact that he is currently without a hydrogeologist because the consultant familiar with the file has recently retired. The Tribunal agrees with Mr. Knoppke’s submissions that if the Tribunal is to consider that such a factor merits an adjournment, the Tribunal would require additional details regarding any constraints the Appellant may face in retaining a new consultant on a timely basis.

43In summary, the Tribunal finds that a short adjournment, to a status update teleconference on November 9, 2015, is in the interests of the parties, preserves the efficiency and integrity of the Tribunal’s process, will not cause or contribute to environmental risk or harm, and is in the public interest. The Tribunal case coordinator will forward call-in details for the teleconference to the parties and participant.

ORDER

44On request of the Director of the Ministry of the Environment and Climate Change, the Tribunal adjourns the hearing of this matter to a teleconference on November 9, 2015 at 10 a.m.

Adjournment Granted

“Justin Duncan”

JUSTIN DUNCAN

MEMBER

“Heather I. Gibbs”

HEATHER I. GIBBS

VICE-CHAIR

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Krek v. Ontario (Environment and Climate Change), 2015 CanLII 70375

Case Summary