Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: September 08, 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: August 22, 2016 via telephone conference call
APPEARANCES:
Parties
Alex Krek Counsel/Representative: Dennis O’Leary
Director, Ministry of the Environment and Climate Change Counsel/Representative: Sylvia Davis
Dianne and William Klein Counsel/Representative: Self-represented
Dieter Knoppke Counsel/Representative: John Buhlman
Thomas and Ingeborg Sickinger Counsel/Representative: John Sickinger
Participant
Henry Fischler Counsel/Representative: Self-represented
DECISION DELIVERED BY JUSTIN DUNCAN AND HEATHER I. GIBBS
REASONS
Background
1On May 6, 2014, Cindy Hood, Director, Ministry of the Environment and Climate Change (“MOECC”) issued Director’s Order No. 6527-9HBQB9-DO (“Director’s Order”) requiring Alex Krek (“Appellant”) to retain a consultant to prepare and complete all 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, Dorset, Lake of Bays in the District Municipality of Muskoka, Ontario. The Appellant appealed the Director’s Order to the Environmental Review Tribunal (“Tribunal”) on May 20, 2014.
2Further background to this proceeding can be found in a Tribunal order dated September 22, 2014, issued following the preliminary hearing. Briefly, the Director’s Order is part of an ongoing response to a spill of fuel oil from an above-ground fuel tank on cottage property belonging to the Appellant. The added parties and participant are neighbouring property owners.
3The hearing has not yet been scheduled due to a number of factors including mediation among the parties, and an adjournment of the proceedings while well testing has been ongoing in order to confirm the source of contamination in the area. The adjournment was requested by the Director on the basis of two opinions by MOECC hydrogeologists Myron Zurawsky and Christopher Munro, provided to the Director in August 2015, which indicated that it was unlikely that the spill on the Krek property had caused the fuel oil contamination appearing in the well on the Sickinger property. Further details can be found in the Tribunal’s reasons for adjourning the hearing dated October 26, 2015 and April 22, 2016.
4On July 12, 2016, Sylvia Davis, counsel for the Director, wrote to the Tribunal and the parties with the Director’s Notice of Revocation of Director’s Order No. 6527-9HBQB9-DO, which included the affidavit of John Kaasalainen and exhibits. Ms. Davis wrote that “the Director is revoking Order No. 6527-9HBQB9-DO against Mr. Krek as there is currently no credible evidence that the spill which occurred on Mr. Krek’s property is the source of the contamination at the Sickinger well.”
5On July 26, 2016, the Tribunal wrote to the parties pursuant to Rule 202 of the Tribunal Rules of Practice (“Rules") asking for their position on the Director’s request to revoke. Mr. Krek, Dieter Knoppke and Henry Fischler responded that they do not oppose revocation. The Kleins and the Sickingers wrote to the Tribunal objecting to the revocation.
6A telephone conference call (“TCC”) was held on August 23, 2016 to hear the objections and determine the matter. At that time, the Tribunal accepted the Director’s Notice of Revocation and dismissed this proceeding with reasons to follow. These are the Tribunal’s reasons.
Relevant Legislation and Rules
7The following provisions of the Environmental Protection Act (“EPA”) and the Tribunal’s Rules are relevant here:
- (1) The purpose of this Act is to provide for the protection and conservation of the natural environment.
Rules of Practice
- 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.
Discussion, Analysis and Findings
8In her submissions, counsel for the Director wrote that:
The Director has received evidence that the well on the Sickinger property has been tampered with, in that fuel oil has been added to the well by a third party, thereby invalidating samples taken from that well. There is evidence that this tampering has been ongoing and as such all samples taken from the Sickinger well are now suspect. The Director has obtained an order from the Ontario Court of Justice securing the wells on the Krek, Knoppke and Sickinger properties from all but MOECC staff. Over the next several months, the MOECC will work with the impacted property owners to determine next steps.
9Subsequently, the Director forwarded to the Tribunal and all parties a copy of a new Provincial Officer’s Order and associated Provincial Officer’s Report, issued on August 17, 2016, ordering that Mr. Knoppke take a number of actions.
10On the TCC, Ms. Davis explained that the Director has concluded that there is currently no basis in fact or law to name Mr. Krek in the Director’s Order under appeal. The Director’s view is a result of current hydrological reports that call into question the source of well contamination, a report that contamination is no longer reaching Lake of Bays, and videographic evidence that Mr. Knoppke appears to have poured hydrocarbons into the Sickinger well. Ms. Davis stated that a Provincial Officer issued an Order on August 17, 2016 directed against Mr. Knoppke, which requires, among other things, further testing. The Director acknowledged the frustration of innocent third parties affected by well contamination but submitted that as a result of Mr. Knoppke’s apparent actions contributing to contamination, that the testing and delineation of any contamination must now start again from square one.
11The Director submits that a report by MOECC’s Environmental Reporting and Monitoring Branch (“ERMB”) dated December 11, 2015, filed as part of the Director’s materials in the earlier motion to adjourn, found no contamination of Lake of Bays. Further, the MOECC has secured all of the relevant wells, and a Provincial Officer has issued a new order relating to contamination in the area. As a result, the Director submits that revocation of the Director’s Order will not harm the environment.
12The ERMB report concludes as follows:
In conclusion, based on the water and sediment monitoring conducted, there is no evidence of present-day impacts related to the historic home heating oil spill. Although some PHC and PAHs were detected, levels were low and below those associated with impacts to aquatic biota or those predicted to impact sediment dwelling organisms.
13Mr. Fischler wrote to the Tribunal on August 3, 2016, confirming that he did not object to the revocation, on the understanding that the MOECC will continue to follow up on the matter with the impacted property owners, and will issue any further orders as appropriate.
14The objection of the Kleins and the Sickingers to the revocation of the Director’s Order under appeal related to the same concerns expressed by Mr. Fischler (i.e., that the MOECC continue to take steps in this matter to address the overarching concern that any remaining contamination be cleaned up). Mr. Sickinger acknowledged on the TCC that to proceed with a hearing in the circumstances would be futile, although he sought assurance that the matter will be dealt with.
15Mr. Buhlman, counsel for Mr. Knoppke, indicated that although Mr. Knoppke did not oppose revocation of the Director’s Order, he did not accept the Director’s basis or reasons for revoking the order.
16The affidavit evidence filed by the Director is currently uncontradicted. The Tribunal accepts that there is currently no credible evidence that the spill that occurred on Mr. Krek’s property in 1990 is the source of the current contamination at the Sickinger well, and hence that there is no basis for the Director’s Order issued against Mr. Krek and which is the subject matter of this appeal. The Tribunal finds that continuing with an appeal of a Director’s Order that has no credible basis in fact or law is not in the interests of the parties, the participant, or the administration of justice.
17Additionally, on the basis of the ERMB report and evidence filed by the Director that steps are being taken to address the contamination at issue, whether remaining from the 1990 spill or of more recent origin, including the August 17, 2016 Provincial Officer’s Order, the Tribunal is satisfied that the revocation of the Director’s Order itself will not harm the environment. The Tribunal therefore finds that the proposed revocation is consistent with the purpose and provisions of the EPA, and is in the public interest.
18In conclusion, on the basis of the reasons above and in accordance with Rule 202, the Tribunal finds that the appeal ought to be dismissed on the basis of the revocation of Director’s Order No. 6527-9HBQB9-DO.
DECISION
19The appeal is dismissed.
Appeal Dismissed
“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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