Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE:
March 31, 2016
CASE NO.:
15-025
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c.E.19, as amended
Appellant:
Northern Waste Transfer Services Ltd.
Respondent:
Director, Ministry of the Environment and Climate Change
Subject of appeal:
Order to remove and dispose of all subject waste and install spill containment
Reference No.:
SCB-1444-001-15
Property Address/Description:
250 Magill Street, Lot 5, Concession 5
Municipality:
Greater Sudbury
ERT Case No.:
15-025
ERT Case Name:
Northern Waste Transfer Services Ltd. v. Ontario (Environment and Climate Change)
Heard:
In writing
APPEARANCES:
Parties
Counsel/Representative^+^
Northern Waste Transfer Services Ltd.
Don Kirby^+^
Director, Ministry of the Environment and Climate Change
Sarah Kromkamp
DECISION DELIVERED BY DIRK VANDERBENT
REASONS
Background
1On March 19, 2015, Lindsay Furan, a Provincial Officer with the Sector Compliance Branch of the Ministry of the Environment and Climate Change (“MOECC”) issued Provincial Officer’s Order SCB-1444-001-15 (the “Order”) to Northern Waste Transfer Services Ltd., requiring: (i) removal of waste from a site located at 250 Magill Street, Greater Sudbury, Ontario (the “Site”); and (ii) installation of spill containment structures. On March 26, 2015, Don Kirby, President of Northern Waste Transfer Services requested that the Director review the Order in accordance with s. 157.3 of Environmental Protection Act (“EPA”). The Director did not change the Order and it was deemed to be confirmed by the Director under s. 157.3(8) of the EPA. Northern Waste Transfer Services Ltd. ( the “Appellant”) then filed a Notice of Appeal with the Environmental Review Tribunal (the “Tribunal”) requiring a hearing respecting the Order.
2Following a preliminary hearing held on August 11, 2015, the parties agreed to participate in Tribunal assisted mediation, which was conducted over the period from August to October, 2015, as the parties successfully worked to obtain a resolution of the issues raised in this proceeding.
3Pursuant to their agreement, the parties requested that the Tribunal should revoke the Order and dismiss the appeal. Pursuant to Rule 160 of the Tribunal’s Rules of Practice (“Rules”), the Mediator agreed to assume the adjudicator’s role, and the purpose of this Decision is to provide the Tribunal’s disposition of their request.
Relevant Legislation and Rules
3(1). The purpose of this Act is to provide for the protection and conservation
of the natural environment.
Rules of the Tribunal
Settlement at Mediation
- Where a proposed settlement, withdrawal or revocation results from a mediation, Rules 198 to 202 apply with all references to “the Tribunal” being read as “the Tribunal member who has conducted the mediation”, unless the mediator has submitted the proposed settlement, withdrawal or revocation to the panel for consideration under Rules 199 to 202.
Termination of Proceedings
- Where a Director, a Risk Management Inspector or Official or a municipality proposes to revoke the decision that is the subject of an appeal, the Tribunal shall consider whether the proposed revocation is consistent with the purpose and provisions of the relevant legislation and whether the proposed revocation is in the public interest. The Tribunal shall also consider the interests of Parties, Participants and Presenters. After the consideration of the above factors, the Tribunal may decide to continue with the Hearing or issue a decision dismissing the proceeding.
Discussions and Analysis
5In overview, the main requirements of the Order are: (i) removal of waste from an underground storage tank and a lugger box; and (ii) installation, by August 28, 2015, of all spill containment structures or impermeable surfaces required by the relevant conditions found in the Environmental Compliance Approval No. A740170 for the Site (the “ECA”).
6In support of the parties’ request that the Order be revoked, the Director filed an affidavit sworn by Brian Cameron, the District Manager of the MOECC’s Sudbury District Office. Mr. Cameron is responsible for supervising operations in that office. In his affidavit, he confirmed that MOECC environmental officers conducted a site visit on August 19, 2015 and confirmed that: (i) they observed that the underground storage tank and lugger box had been emptied; and (ii) they were not aware of any imminent environmental risks at the Site. Mr. Cameron confirmed that a significant amount of work remains outstanding regarding spill containment, including the construction of a berm and dike area. However, Mr. Cameron also confirmed that Mr. Kirby is overseeing construction work that is currently underway until weather no longer permits, and that Mr. Kirby, on behalf of the Appellant, is planning to change the configuration of the spill containment structures at the Site, which will likely require an amendment to the ECA. He further confirmed that Mr. Kirby has advised that the Appellant intends to continue construction of the spill containment structures next summer.
7Mr. Cameron also confirms that the Sudbury District Office will directly manage these outstanding environmental issues at the Site on a go forward basis. He notes that, given its proximity to the Site, the Sudbury District Office is in a better position than the Sector Compliance Branch (located in Toronto), to closely monitor the Site and to work with Mr. Kirby to bring the Site into compliance with both the ECA and the EPA. Mr. Cameron also indicates that the Sudbury District Office will continue to do proactive inspections of the Site, and can issue further orders if required.
Findings
8The Tribunal notes that the Appellant has complied with the requirements of the Order to remove waste from the underground storage tank and a lugger box. It is clear that Mr. Kirby is overseeing construction activities to comply with the spill containment requirements of the ECA. This work is on-going, but progress was delayed during the winter months. Also an amendment to the ECA will likely be required, due to design changes proposed by the Appellant. It appears, therefore, that the Appellant is working toward satisfying the intent of the Order, namely, to install all spill containment structures or impermeable surfaces required by the relevant conditions found in the ECA. It is not disputed that processing an application to amend the ECA will require additional time to complete. Mr. Cameron has also indicated that his staff was not aware of any imminent environmental risks at the Site. For these reasons, the Tribunal accepts that Mr. Cameron’s plan for on-going supervision by the Sudbury District Office will be more effective than the Order, in ensuring future compliance with the ECA and the EPA.
9Based on the representations made by Mr. Cameron in his affidavit, the Tribunal finds, therefore, that the parties’ joint proposal to revoke the Order is consistent with the purpose and provisions of the EPA and is in the public interest.
10The Tribunal notes that, under Rule 202, the Tribunal must consider the interests of participants or presenters. However, there are no participants or presenters in this proceeding.
DECISION
11Provincial Officer’s Order SCB-1444-001-15, which was deemed to be confirmed by the Director under s. 157.3(8) of the EPA, is revoked.
12The Appellant’s appeal is dismissed.
Order Revoked
Appeal Dismissed
“Dirk VanderBent”
DIRK VANDERBENT
VICE-CHAIR
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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