Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: April 18, 2016
CASE NO.: 15-096
PROCEEDING COMMENCED UNDER section 100.1(7) of the Environmental Protection Act, R.S.O. 1990, c.E.19, as amended
Appellant: See Appendix 1 - Appellant List
Respondent: Regional Municipality of Niagara
Subject of appeal: Order to pay costs related to the cleanup of a spill
Property Address/Description: 833 Helena Street
Municipality: Town of Fort Erie
Upper Tier: Regional Municipality of Niagara
ERT Case No.: 15-096
ERT Case Name: Nirula v. Niagara (Regional Municipality)
Heard: March 9 and 11, 2016 by telephone conference call and in writing
APPEARANCES:
| Parties | Counsel/Representative^+^ |
|---|---|
| Sanjay Nirula | J. Bruce McMeekin |
| 1350095 Ontario Ltd. and Edwin M. Robertson | Marc McAree and Matthew Gardner |
| Gerald Douglas Warne | Stewart McLellan^+^ (in writing only) |
| DTZ Barnicke Niagara Limited, Todd Howard Crawford and Taylor Wilson | John Tidball |
| Regional Municipality of Niagara | Leonard Griffiths and Jessica Mathewson |
| Corporation of the Town of Fort Erie | Christine G. Carter |
ORDER DELIVERED BY HUGH S. WILKINS
REASONS
Background
1On March 19, 2015, the Director, Ministry of the Environment and Climate Change issued Order No. 7344-9UKF6C (the “Director’s Order”) to a number of persons regarding a spill of environmental contaminants including toluene and acetone at 833 Helena Street, Fort Erie, in the Regional Municipality of Niagara (the “Site”). Several persons named in the Director’s Order appealed to the Environmental Review Tribunal (the “Tribunal”) under s. 140 of the Environmental Protection Act (“EPA”). These appeals were assigned Tribunal Case Nos. 15-019 to 15-024. Those appeals were concluded in a Decision of the Tribunal, dated April 14, 2016.
2In response to the spill, the Regional Municipality of Niagara (the “Region”) undertook clean-up activities at or adjacent to the Site pursuant to s. 100 (1)(a) of the EPA in an effort to prevent, eliminate and ameliorate any adverse effects and to restore the natural environment. On September 14, 2015, the Region issued an order under s. 100.1(1) of the EPA against the persons named in the Director’s Order for the recovery of $3,670,315.78 in costs and expenses (the “s. 100.1 Order”) incurred for its actions taken in the clean-up.
3Several persons named in the s.100.1 Order appealed to the Tribunal under s. 100.1(7) of the EPA. The appeals of the s. 100.1 Order are the subject of this proceeding. A full list of the appellants is included in Appendix 1. They include DTZ Barnicke Niagara Limited (“DTZ”), Todd Howard Crawford, Taylor Wilson and Sanjay Nirula.
4A preliminary hearing in this proceeding was held by telephone conference call (“TCC”) on January 6, 2016, at which the Tribunal granted party status to the Corporation of the Town of Fort Erie and addressed procedural issues.
5On February 26, 2016, the Tribunal received correspondence from the Region stating that it intended to revoke the s. 100.1 Order as against DTZ, Mr. Crawford, Mr. Wilson and Mr. Nirula. The Region stated that it had received information from these parties demonstrating that there was no longer a basis for the order as against them.
6On March 9, 2016, the Tribunal held a status update TCC at which the Region confirmed its intention to revoke the s. 100.1 Order as against the above-mentioned parties. During the status update TCC, each of the parties on the call stated that it did not oppose the revocation of the s. 100.1 Order as against DTZ, Mr. Crawford, Mr. Wilson and Mr. Nirula.
7On March 9, 2016, the Tribunal requested written submissions on how the proposed revocation was consistent with the purpose and provisions of the EPA and in the public interest in accordance with Rule 202 of the Tribunal’s Rules of Practice (the “Tribunal’s Rules”). On March 10 and 11, 2016, and April 12, 2016, the Tribunal received written submissions in this regard. A further TCC was also held on March 11, 2016.
Relevant Legislation and Rules
8The following are the relevant provisions of the Environmental Protection Act (“EPA”) and the Tribunal’s Rules:
Purpose of the Act
3.(1) The purpose of this Act is to provide for the protection and conservation of the natural environment.
Rules of the Tribunal
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.
Issue
9The issue is whether the s. 100.1 Order should be revoked as against DTZ, Mr. Crawford, Mr. Wilson and Mr. Nirula.
Discussion, Analysis and Findings
10Tribunal Rule 202 requires the Tribunal to consider whether the proposed revocation of an order is consistent with the purpose and provisions of the EPA and whether it is in the public interest. The Tribunal must also consider the interests of parties, participants and presenters. The Tribunal has the discretion either to continue with a proceeding or to dismiss it.
11On February 26 and March 10, 2016, the Region sent correspondence to the Tribunal stating that, based on information received from DTZ, Mr. Crawford, Mr. Wilson and Mr. Nirula, they have not had ownership or control of pollutants that would reasonably form the basis of a s. 100.1(1) Order against them. The Region stated that, based on this information, it would not be in the public interest or consistent with the EPA for the Region to pursue costs and expenses from these persons. In their written submissions to the Tribunal, dated March 10, 2016, Mr. Nirula stated that he supported the Region’s submissions and DTZ, Mr. Crawford and Mr. Wilson stated that it is both in their interests and the public interest that the s. 100.1 Order be revoked as against them. All of the parties agree to the proposed revocation.
12The Tribunal has considered the parties’ submissions and interests and finds that the proposed revocation is consistent with the purpose and provisions of the EPA and is in the public interest. The Tribunal revokes the provisions of the s. 100.1 Order as against DTZ, Mr. Crawford, Mr. Wilson and Mr. Nirula and dismisses the proceedings arising from them pursuant to Tribunal Rule 202.
ORDER
13The provisions of the Region’s s. 100.1 Order as against DTZ, Mr. Crawford, Mr. Wilson and Mr. Nirula are revoked and the corresponding appeals (Tribunal File Nos. 15-096, 15-100, 15-101, and 15-102) are dismissed.
Order Revoked in Part
Appeals 15-096, 15-100, 15-101 and 15-102 Dismissed
“Hugh S. Wilkins”
HUGH S. WILKINS
MEMBER
Appendix 1 – Appellant List
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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
Appendix 1
Appellant List
| Appellant Name | File No. |
|---|---|
| Sanjay Nirula | 15-096 |
| 1350095 Ontario Limited | 15-097 |
| Edwin Robertson | 15-098 |
| Gerald Douglas Warne | 15-099 |
| DTZ Barnicke Niagara Limited | 15-100 |
| Todd Howard Crawford | 15-101 |
| Taylor Wilson | 15-102 |