Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE:
April 22, 2016
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:
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
Henry Fischler
Self-represented
ORDER DELIVERED BY JUSTIN DUNCAN AND HEATHER I. GIBBS
Background
1This order relates to a request for an adjournment by the Director, Ministry of the Environment and Climate Change (the “Director”, “MOECC”) of the hearing into this appeal, scheduled for April 13-15, 2016. The Director requests an adjournment until September 12, 2016.
2The background to this appeal can be found in an earlier order of the Environmental Review Tribunal (the “Tribunal”) dated July 31, 2015.
3The Appellant, Alex Krek, consents to the adjournment. The added party, Dieter Knoppke, consents to the adjournment with several conditions. Dianne Klein opposes the adjournment.
4The Tribunal granted the adjournment on April 4, 2016 with reasons to follow. These are the reasons for the Tribunal’s decision.
Relevant Legislation and Rules
5Tribunal’s Rules of Practice
- 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;
(c) the integrity of the Tribunal’s process;
(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.
Submissions
6This adjournment request follows a similar previous request by the Director for an adjournment on August 27, 2015 that was granted by the Tribunal.
7The Director submits that currently, as was the situation in August 2015, there is insufficient evidence as to the source of the contamination at the Sickinger well to support the Director’s Order under appeal.
8The Director stated that the following developments had occurred since the last adjournment:
- The Environmental Monitoring and Reporting Branch (the “EMRB”) of the MOECC issued a report on December 11, 2015. The EMRB Report found that, based on sediment and water quality monitoring conducted in this study, there is no evidence of petroleum hydrocarbon contamination of Lake of Bays related to the historic spill of home heating oil. The Director states that this conclusion is reinforced by the data obtained from well sampling conducted in July 2015.
9Based on the EMRB Report, the Director accepted a proposal by Mr. Krek’s consultants, Stantec, for a drilling and sampling program. The proposal involves sampling existing wells and drilling one new well, details of which have been subject to discussion amongst the parties. Well sampling took place on February 17, 2016. However, some wells were inaccessible, and it was not possible to drill a new well due to snow. The samples taken on February 17, 2016 were sent for analysis to the MOECC laboratories on the same day. Samples were also sent to a third party laboratory that specializes in “fingerprinting” and Biomarker analysis.
10The Director states that results from the third party laboratory are expected at the end of March 2016, and from the MOECC laboratory in June 2016. Both sets of results will subsequently be sent to all parties for review. The new monitoring well described in the Stantec proposal cannot be drilled until the snow is gone. The Director advises that, once the well is drilled, it will be necessary to take samples over time and that the results of the samples “will assist in determining the need and location for further wells if any.”
11The Appellant consents to the adjournment. He notes that additional testing has been undertaken at his property and in the Sickinger well as recently as March 16, 2016. Mr. Krek states that the results of this testing are outstanding and are not likely to be received until shortly before or after the currently scheduled date for the hearing. In addition, Mr. Krek notes that there is no issue of non-compliance in respect of any remedial steps which the MOECC considers currently appropriate.
12Mr. Knoppke, through his counsel John Buhlman, is of the view that “very little has been accomplished since the last adjournment,” but that in the interest of completing the work Mr. Krek has agreed to do, Mr. Knoppke does not oppose one more adjournment. However, he requests that the Tribunal impose a number of conditions on the adjournment relating to site visits and a sampling protocol, as well as scheduling a telephone conference call (“TCC”) every four to six weeks to ensure the work is being done as scheduled.
13Ms. Klein objects to an adjournment on the basis that it does nothing but “further delay resolution of this matter.”
Discussion, Analysis and Findings
14In its October 26, 2015 reasons for granting the initial adjournment, the Tribunal did a full analysis relating to the Director’s requested adjournment. Much of the same argument and analysis applies to this current adjournment request, and the Tribunal’s reasons from the October 2015 Order continue to remain valid. For ease of reference, the key paragraphs are reproduced here:
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.
15The Tribunal finds that, in balancing the factors under Rule 105, a continued adjournment is warranted. Until it receives results of the environmental sampling, the MOECC is not in a position to determine whether to proceed with the Director’s Order as currently drafted, or to consider its revocation and replacement. The Tribunal finds that the parties have provided a reasonable justification for the timeline for the additional testing that must occur, although it will, unfortunately, take longer than predicted in the earlier adjournment request.
16The added parties continue to express frustration with the long history relating to this clean-up However, they have not provided evidence of any prejudice that will be caused by the additional delay. In this regard, the Tribunal emphasizes that the Director’s Order under appeal is not stayed, and therefore, will remain in effect during any period of the adjournment of the hearing.
17Having regard to the adjournment considerations listed in Rule 105, the Tribunal finds that a continued adjournment until September 12, 2016 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. However, in making this finding, the Tribunal expects that, the Director will make a timely decision upon receipt of the laboratory analyses whether to continue with the appeal or to revoke the current Director’s Order in favour of issuing a new one.
18The Tribunal declines to impose the list of conditions sought by Mr. Knoppke. The majority of them relate to communications between the parties around sampling and test results. The Director has responded to Mr. Knoppke’s request for conditions by undertaking to comply with most of them voluntarily, and the Tribunal is confident that best efforts will be made to work constructively during the drilling and sampling process.
19The Tribunal agrees with Mr. Knoppke’s suggestion that regular TCCs be scheduled to assist in keeping all parties informed of developments in this proceeding and in preparing for the hearing. The first TCC will take place mid-May 2016. The case coordinator will forward call-in details to the parties and participant.
ORDER
20On request of the Director of the MOECC, the Tribunal adjourns the hearing of this matter to September 12, 2016 or such time as available dates may be set in the month of September 2016. The hearing dates of April 13, 14 and 15, 2016 are vacated.
21The case coordinator will forward call-in details for a TCC to be set mid May 2016.
Adjournment Granted
“Justin Duncan”
JUSTIN DUNCAN
MEMBER
“Heather I. Gibbs”
HEATHER I. GIBBS
VICE-CHAIR
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Environmental Review Tribunal
A constituent tribunal of Environment and Land Tribunals Ontario
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