Jakubec v. Ontario (Environment and Climate Change), 2016 CanLII 65263

Tribunal de l’environnement

ISSUE DATE: September 30, 2016

CASE NO.: 16-076

PROCEEDING COMMENCED UNDER section 142.1(2) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended

Appellant: Kevin Jakubec

Approval Holder: North Kent Wind 1 GP Inc., as the general partner of North Kent Wind 1 LP

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Renewable Energy Approval for North Kent Wind 1 Project

Reference No.: 5272-A9FHRL

Property Address/Description: Various locations

Municipality: Municipality of Chatham-Kent

ERT Case No.: 16-076

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

Heard: August 23, 2016 in Chatham, Ontario and August 29, 2016 by telephone conference call

APPEARANCES:

Parties Counsel

Kevin Jakubec John Goudy

North Kent Wind 1 GP Inc., as the general partner of North Kent Wind 1 LP Sarah Powell, Andrea Burke (August 29 only) and Chenyang Li (Articling Student) (August 23 only)

Director, Ministry of the Environment and Climate Change Sarah Kromkamp, Rebecca Crangle and Stephanie Hewson (Articling Student)

Municipality of Chatham-Kent David Taylor (August 23 only) and John Norton

Participants

Larry Meyerink Self-represented (August 23 only)

Laura Poland Self-represented (August 23 only)

Calvin Simmons Self-represented (August 23 only)

Dorothy Travis Self-represented

Presenters

Maureen Geddes Self-represented (August 23 only)

Yvonne Laevens Self-represented (August 23 only)

ORDER DELIVERED BY JERRY V. DEMARCO

REASONS

Background

1The preliminary hearing in this matter before the Environmental Review Tribunal (“Tribunal”) began on August 23, 2016, in Chatham, Ontario and continued on August 29, 2016, by telephone conference call (“TCC”).

2On August 22 and 24, 2016, Kevin Jakubec (“Appellant”) filed two Notices of Motion seeking various procedural orders. These motions were heard during the preliminary hearing in addition to several requests for status.

3North Kent Wind 1 GP Inc. (“Approval Holder”) and the Director, Ministry of the Environment and Climate Change (together the “Respondents”) consented to most of the Appellant’s motions for procedural orders, including:

a) a request for an extension until September 2, 2016 for the Appellant to serve the other parties with his additional disclosure and documents to be relied on at the hearing;

b) a request for permission to have the testimony of two of the Appellant’s witnesses, Dr. Mark-Paul Buckingham and Dr. William Sawyer, heard by videoconference; and

c) a request to adjourn the start of the hearing to October 5, 2016 (“shorter adjournment request”).

4The Respondents opposed two of the Appellant’s motions, namely:

a) a request for an extension of time until October 19, 2016 to deliver certain evidence consisting of testing and analysis by expert witnesses, and that the start of the hearing be accordingly adjourned further (“lengthier adjournment request”); and

b) a request that the Tribunal adopt the Appellant’s proposed list of issues for the appeal.

5On August 31, 2016, the Tribunal issued an Order with its dispositions on the motions and procedural issues addressed during the preliminary hearing. These are the reasons for the Tribunal’s Order of August 31, 2016.

Issues

6The issues are:

whether to grant the requests for party, participant and presenter status;
whether to grant the Appellant’s request for permission to have the testimony of two of the Appellant’s witnesses, Dr. Mark-Paul Buckingham and Dr. William Sawyer, heard by videoconference;
whether to grant the Appellant’s requests for an extension until September 2, 2016 for the Appellant to serve the other parties with his additional disclosure and documents to be relied on at the hearing, and to adjourn the start of the hearing to October 5, 2016;
whether to grant the Appellant’s request for a lengthier adjournment; and
whether the Appellant’s proposed issues list should be accepted.

Relevant Rules

7The following provisions of the Tribunal’s Rules of Practice ("Rules") are relevant here:

Within eight days after the appeal expiry date, the Tribunal will provide the Parties with a schedule of events for the determination of the appeal. Absent exceptional circumstances, the events and the intervals between them will be set in accordance with the timeline in Appendix A to these Rules.

Motions for Adjournment

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.

Discussion, Analysis and Findings

Issue 1: The Requests for Party, Participant and Presenter Status

8Several individuals attended the preliminary hearing on August 23, 2016 to seek status. Larry Meyerink, Laura Poland, Calvin Simmons and Dorothy Travis sought participant status. Maureen Geddes and Yvonne Laevens sought presenter status. The parties did not object to these requests for status and the requests were granted by the Tribunal subject to the condition that those granted status may not raise issues that have not already been raised by the Appellant.

9Additionally, Theo Heuvelmans, who had contacted the Tribunal in advance of the preliminary hearing expressing an interest in being granted status, appeared at the preliminary hearing on August 23, 2016. He indicated that he had wished to present about wildlife and natural heritage in the woodlot near his property but later recognized that such issues were not part of the Appellant’s appeal. Accordingly, he elected not to pursue his request for status.

10During the continuation of the preliminary hearing by TCC on August 29, 2016, the Municipality of Chatham-Kent (“Municipality”) sought party status, subject to certain conditions. The parties did not object to the Municipality’s request for status. However, the Respondents’ positions were contingent upon the proposed conditions, as agreed to with the Municipality, that:

the Municipality will not raise issues that have not already been raised by the Appellant;
the Municipality is not seeking to call any witnesses; and
the Municipality’s time allotment to cross-examine witnesses will be subject to any restrictions set by the presiding Tribunal panel in order to adhere to the Schedule of Events for the hearing.

11The Tribunal granted the Municipality’s request subject to the conditions set out in the Tribunal’s August 31, 2016 Order, which is reproduced below.

12Given the circumstances and the Respondents’ consent, the Tribunal granted the Appellant’s requests for the following at the preliminary hearing on August 23, 2016:

i. an extension until September 2, 2016 for the Appellant to serve the other parties with his additional disclosure and documents to be relied on at the hearing and an adjournment of the start of the hearing to October 5, 2016; and

ii. permission to have the testimony of two of the Appellant’s witnesses, Dr. Mark-Paul Buckingham and Dr. William Sawyer, heard by videoconference.

Issue 4: The Appellant’s Request for a Lengthier Adjournment

13As noted above, the Tribunal granted the Appellant’s request for a shorter adjournment on consent of the Respondents. However, the Appellant also requested a lengthier adjournment that would permit the filing of more evidence by the Appellant in late October, with the start of the hearing likely to be some time in November or later, depending on what effect the additional evidence would have on the Respondents’ preparations for the hearing.

14The Appellant initially argued that a “clock-stopping” adjournment that would extend the six month deadline for the disposition of this proceeding was necessary to ensure a full and fair hearing of his appeal as the evidence sought to be collected is directly relevant to the issues on appeal. However, in oral argument during the TCC on August 29, 2016, the Appellant abandoned his request for an adjournment that would “stop the clock” under s. 59(2) of O. Reg. 359/09, but maintained that a lengthy adjournment was still warranted. The Appellant argued that the start of the hearing could be postponed to allow more time to gather relevant evidence without a need to “stop the clock”.

15The Respondents countered that the Appellant’s motion for the adjournment should be dismissed because the test for an adjournment is not simply a matter of relevance as argued by the Appellant. They argued that the Appellant failed to meet his onus to demonstrate exceptional circumstances to warrant the requested adjournment.

16In determining a motion for an adjournment, the Tribunal considers the factors set out in Rules 104 and 105 (see also Rule 32). If the motion is within the context of a renewable energy approval (“REA”) appeal and is for an adjournment to “stop the clock” on the statutory six month deadline, the Tribunal must also determine whether, in its opinion, such an adjournment is “necessary… to secure a fair and just determination of the proceeding on its merits” under s. 59(2) of O. Reg. 359/09.

17The Appellant’s rationale for the lengthier adjournment was to allow him additional time (i.e., to October 19, 2016) to complete and disclose certain specified testing and analysis by expert witnesses, which he argued is directly relevant to the issues on appeal.

18The Tribunal has considered all the applicable factors in Rules 104 and 105 and finds that the following circumstances are most relevant to the Tribunal’s analysis of the request for a lengthier adjournment.

19First, the Tribunal has already granted a shorter adjournment, which will allow the Appellant more time to gather and disclose additional evidence. Thus, at least in part, one of the Appellant’s main objectives in requesting an adjournment is already being met.

20Second, it is the uncontested expert evidence of the Approval Holder’s witness, Storer Boone of Golder Associates Ltd., that the evidence that the Appellant seeks to collect during a lengthy adjournment will not assist the Tribunal in understanding the issues in the hearing regarding whether the operation of the Project as approved will affect groundwater and water wells. Mr. Boone concluded at paras. 16-17 of his affidavit:

The proposed additional testing and analysis work described in Exhibits H, J and L to the Jakubec Affidavit will not assist the Tribunal in answering the question of whether or not construction and operation of the North Kent Wind Project's turbines and their foundations will cause adverse effects on groundwater. The outcome of the work as proposed will not produce reliable or defensible data with respect to conclusions regarding causation because of the stated approach to choosing sampling locations and sample numbers and because no baseline (i.e., pre-turbine) data is available for comparison purposes…

In addition, the proposed additional testing and analysis described in Exhibits H, J and L to the Jakubec Affidavit will not answer the question of impact to groundwater with respect to wells near previously constructed turbines. Rather, the data proposed to be gathered will only reflect existing conditions at selectively chosen sampling locations.

21While the Appellant filed an affidavit explaining the proposed work to be completed during the adjournment period, the Appellant provided no convincing evidence to counter Mr. Boone’s evidence or to show that the additional work is needed for the Appellant to present his case and to ensure a full and fair hearing of his appeal.

22Third, the Appellant’s evidence about the circumstances giving rise to the adjournment request did not adequately show that he made all reasonable efforts to avoid the need for the lengthier adjournment request, for instance, by providing a sufficient explanation as to why the proposed work could not have been completed earlier.

23Fourth, as noted above, a “clock-stopping adjournment” needs to meet the test of being “necessary… to secure a fair and just determination of the proceeding on its merits” under s. 59(2) of O. Reg. 359/09. The Appellant elected to not attempt to meet this test but nonetheless sought an adjournment that would use up a substantial portion of the remaining time in the six month period. As indicated in Rule 105(k), the fact that a proceeding is taking place under the expedited timeline for appeals under s. 142.1 of the Environmental Protection Act (“EPA”) is a relevant factor to consider in assessing the merits of an adjournment request (see also Rule 32 and its reference to “exceptional circumstances”). While the Tribunal was satisfied that the shorter adjournment request could be accommodated without jeopardizing the Tribunal’s ability to meet the six month deadline, the same was not true of the lengthier adjournment request. Pushing the start date of this hearing to some point following the completion of the Appellant’s proposed additional evidence gathering period would put at risk the Tribunal’s ability to meet the deadline. This is especially the case given that it was not possible to determine what additional responding evidence would need to be gathered and when the hearing would actually be able to start. The Tribunal finds, in the circumstances of this case, that the Appellant’s request for a lengthier adjournment would effectively need to meet the s. 59(2) test in order to be granted, but that the Appellant had not brought evidence and submissions to meet that test (given that he expressly abandoned his request for a “clock-stopping” adjournment). The Tribunal should not grant a lengthy adjournment that would jeopardize the Tribunal’s ability to meet the six month deadline in a REA proceeding unless the s. 59(2) test is met.

24Having considered the background of this motion and the evidence and submissions of the Appellant and the Respondents in light of the considerations in Rules 104 and 105 and the statutory regime for REA appeals, the Tribunal finds that the lengthier adjournment requested by the Appellant is not necessary for the parties to have a full and fair hearing and would not further the public interest in the delivery of the Tribunal's services in a just, timely and cost effective manner. Rather, the requested adjournment would jeopardize the Tribunal’s ability to meet the six month deadline. As well, the Appellant has not shown that “exceptional circumstances” (Rule 32) warranting an adjournment are present. For the above reasons, the lengthier adjournment request is denied.

Issue 5: The Wording of the Proposed Issues List

25The Appellant argued that his proposed list of issues properly reflected his Notice of Appeal and provided an appropriate scope for the appeal. The Respondents countered that by including "other heavy metals" in his proposed list of issues, the Appellant was extending beyond the scope of his appeal and inappropriately seeking to expand the issues identified in his Notice of Appeal. The Approval Holder further argued that the Appellant was seeking to add a new ground of appeal by including harm to the environment in the Appellant’s grounds for appeal.

26The Tribunal will address the debate among the parties regarding the scope of the “grounds” for the appeal before proceeding to define the “issues” raised in the appeal.

i) Grounds

27As regards the grounds, the EPA states:

Grounds for hearing

142.1(3) A person may require a hearing under subsection (2) only on the grounds that engaging in the renewable energy project in accordance with the renewable energy approval will cause,

(a) serious harm to human health; or

(b) serious and irreversible harm to plant life, animal life or the natural environment.

28The Approval Holder did not dispute that the Appellant properly raised the “human health” ground in his appeal. The only question is whether he also raised the “environmental” ground.

29The Appellant’s three page Notice of Appeal states, in part:

As written REA #5272-A9FHRL ignores the risk of contaminating the environment with radionuclides which possibilities are well established in scientific literature. The food chain and environment stand at threat especially with long radioactive half-lives, an example being Radium-226 with a half life of 1600 years. Clearly Ont. Reg 359/09 regulations require appeals to an Environmental Review Tribunal which must prove harm to human health or irreversible harm to the environment. I, Kevin Jakubec believe this request to Tribunal regarding radionuclide accumulation supports both. (emphasis added)

30Elsewhere in the Notice of Appeal, the Appellant describes how engaging in the project will cause harm (e.g., “foundations compromising further the shale supporting the aquifer layer” resulting in the groundwater contamination by radionuclides). On its face, the Notice of Appeal clearly raises both permissible grounds of appeal and the Approval Holder’s assertion that this appeal is only confined to the health ground is erroneous. The Tribunal finds that the Appellant complied with s. 142.1 and 142.2 of the EPA and properly raised both permissible grounds of appeal. Accordingly, the Tribunal will permit the Appellant to pursue both permissible grounds.

ii) Issues

31The question of what “issues” have been raised in this appeal is not as straightforward. The requirement to set out the “issues” in the Notice of Appeal stems from Rule 29 of the Tribunal’s Rules:

A Notice of Appeal respecting a renewable energy approval filed under section 142.1 of the Environmental Protection Act shall include:…

(e) a statement of the issues and material facts relevant to the subject matter of the appeal that the Appellant intends to present at the main Hearing.

32Given the legislative direction that REA appeals be dealt with in an expedited manner, this Rule is an important aspect of fairness in that allows responding parties to “know the case they have to meet at the hearing, and in a timely way” (Fata v. Ontario (Ministry of the Environment), [2014] O.E.R.T.D. No. 12, at para. 33) and allows added parties, participants and presenters to determine which issues they can address (see also Rule 34).

33At the preliminary hearing, the Appellant provided a proposed list of issues to guide the appeal. The dispute over the proposed issues focused on the following phrase, which is found in several parts of the proposed issues list: “radon gas, radionuclides, and other heavy metals”. For example, the Appellant proposed the following wording for Issue 2(b) in his proposed list of issues:

Will engaging in the Project in accordance with the REA cause serious and irreversible harm to the natural environment due to:… Contamination of groundwater and water wells as a result of elevated levels of radon gas, radionuclides, and other heavy metals? (emphasis added)

34The Respondents objected to the breadth of the phrase “radon gas, radionuclides, and other heavy metals” and argued that the Appellant was expanding the issues beyond those set out in his Notice of Appeal.

35The Tribunal has carefully reviewed the Notice of Appeal and the affidavit evidence relevant to the question of the issues in this appeal. The Tribunal takes note that the Appellant stated that he “erred” in not specifying heavy metals in the Notice of Appeal or being “overly specific about radon and radionuclides”. The Tribunal also notes that radon gas is a radionuclide decay product.

36The Tribunal finds that contamination resulting from substances related to the radionuclide decay chain (rather than general contamination resulting from other substances such as heavy metals not related to the radionuclide decay chain) is clearly the concern raised by the Appellant in his Notice of Appeal. The Appellant’s concerns about radionuclides are not limited to one radionuclide (i.e., radon gas). The Tribunal finds that the proposed wording (i.e., “radon gas, radionuclides, and other heavy metals”) introduces unnecessary confusion by including two terms in parallel (i.e., radon and radionuclides) that are not at a similar level of specificity. Therefore, it is not appropriate to use the phrase proposed by the Appellant, which lacks clarity and would not resolve the confusion that gave rise to this motion.

37The second difficulty with the proposed phrase is that it could be interpreted as expanding the issues on the appeal beyond radionuclides to those heavy metals that are not radionuclides. There is nothing in the Notice of Appeal that indicates that the Appellant wished to raise other types of contamination concerns beyond those relating to the radionuclide decay chain. As well, some heavy metals are radionuclides and some are not, as confirmed by the evidence submitted by the Approval Holder. The proposed phrase lacks clarity because “other heavy metals” follows two terms, one of which (radon gas) is not a heavy metal and another term which is comprised of a mix of heavy metals and other substances. To the extent that the Appellant sought to raise issues regarding contamination of the groundwater by heavy metals that are not part of the radionuclide decay chain, the proposed issues list is inconsistent with the scope of the appeal.

38For the above reasons, the Tribunal finds that, in light of the scope of the Notice of Appeal, an appropriate and more accurate phrase than “radon gas, radionuclides, and other heavy metals” would be “substances related to the radionuclide decay chain” and has used that phrase in the issues list attached at Appendix 1, which was also included in the Tribunal’s Order of August 31, 2016.

39The Tribunal adds that, in respect of the Appellant’s alternative argument that he should be permitted to expand the scope of his appeal, an expansion of the issues on appeal is not appropriate at this stage. While the Tribunal acknowledges the Appellant’s evidence that he worked hard and to the best of his ability to prepare the Notice of Appeal and that he is not experienced in participating in Tribunal proceedings, the Respondents have been preparing their case according to the scope of the Notice of Appeal. The Appellant provided no convincing rationale for why an expansion of the issues would be warranted at this stage of the expedited proceeding, nor an adequate explanation for the lengthy amount of time between filing his appeal and notifying the Tribunal and parties of the alleged omission of “heavy metals” from the notice.

40At the time of a preliminary hearing, the parties should be diligently preparing for the scope of the appeal as determined by the Notice of Appeal and the permissible grounds in the EPA. If the Appellant had concerns about the Project causing the release of other types of contaminants, he should have raised those as issues in this appeal much earlier. In expedited hearings such as this, an appellant’s list of issues cannot be a moving target as this would undermine the predictability objective behind Rule 29(e). To allow an expansion of the issues at this stage could jeopardize the Tribunal’s ability to meet the six month deadline as the Respondents have been preparing to meet the case set out in the Notice of Appeal and would likely require additional time to respond to an expanded appeal. As a result, the Tribunal will not permit the Appellant to address the Project’s alleged releases of heavy metal contaminants other than those related to the radionuclide decay chain.

41Subsequent to the release of the Tribunal’s August 31, 2016 Order, the Parties contacted the Tribunal in respect of their disagreement over the contents of some witness statements served by the Appellant. The Tribunal indicated to the parties that they should make best efforts to resolve their dispute following the receipt of these reasons.

42In order to help the parties resolve their dispute, the Tribunal makes the following comments. The phrase “substances related to the radionuclide decay chain” includes only those substances related to the radionuclide decay chain, including the radionuclides themselves and the stable end-product element of the chain (e.g., lead). Having said that, at this stage, it would be inappropriate to prevent the Appellant from making any mention of other substances that may be relevant to the effects caused by the substances related to the radionuclide decay chain. While the scope of his appeal does not include the effects of those other substances themselves, it is conceptually possible that an analysis of the effects of substances in the radionuclide decay chain may be informed by contextual information about the presence of other substances in the environment. Based on the information made available to the Tribunal to date, it is too early to say whether, for example, any additive or synergistic effects will be relevant to the questions that may arise under the Issues set out in Appendix 1.

43While it is clear from the issues list as adopted by the Tribunal that the scope of this appeal is limited to effects of releases of substances related to the radionuclide decay chain resulting from the Project, it is not possible at this stage to determine which other substances in the groundwater or water wells should be considered in the context of the Tribunal’s analysis.

44In the event that the Parties do not resolve their present disagreement about the evidence, it is likely that the panel at the main hearing will be best positioned to provide any rulings on the admissibility of any evidence about the interaction between substances related to the radionuclide decay chain and other substances that may be present in the groundwater or water wells. The main hearing panel will have more information before it and will be able to make any necessary rulings with the benefit of that additional information.

ORDER

45The Tribunal grants participant status to Larry Meyerink, Laura Poland, Calvin Simmons and Dorothy Travis (the “Participants”), and presenter status to Maureen Geddes and Yvonne Laevens (the “Presenters”). Each Participant and Presenter is granted 30 minutes for oral testimony and must file with the Tribunal their written statements by September 2, 2016. As set out in Rule 34 of the Tribunal’s Rules of Practice (the “Rules”), the Participants and Presenters may not raise issues that have not already been raised by Kevin Jakubec (the “Appellant”).

46The Tribunal grants the Municipality of Chatham-Kent (the “Municipality”) party status, subject to the following conditions:

as set out in Rule 34 of the Tribunal’s Rules, the Municipality may not raise issues that have not already been raised by the Appellant;
the Municipality is not seeking to call any witnesses; and
the Municipality’s time allotment to cross-examine witnesses is subject to any restrictions set by the presiding Tribunal panel in order to adhere to the Schedule of Events for the hearing.

47The Tribunal grants the Appellant’s request for an extension until September 2, 2016, to serve the other parties with his additional disclosure and documents to be relied on at the hearing.

48The Tribunal grants the Appellant’s motion requesting permission to have the testimony of two of his witnesses, Dr. Mark-Paul Buckingham and Dr. William Sawyer, heard by videoconference.

49The Tribunal grants the Appellant’s request to adjourn the start of the hearing to October 5, 2016, but dismisses the Appellant’s motion for a lengthier adjournment.

50The Tribunal orders that the scope of the Appellant’s appeal includes both grounds set out in s. 142.1(3) of the Environmental Protection Act, that is, “serious harm to human health” and “serious and irreversible harm to the natural environment”.

51The Tribunal orders that the issues to be addressed in this appeal are defined as those set out in the Issues List in Appendix 1 to this Order.

52The Tribunal confirms the dates for events as outlined in the Schedule of Events attached as Appendix 2 to this Order (this Schedule has been updated since the release of the Tribunal’s August 31, 2016 Order to reflect minor changes proposed by the parties).

Requests for Party, Participant and Presenter Status Granted

Procedural Directions Ordered

“Jerry V. DeMarco”

JERRY V. DEMARCO

ASSOCIATE CHAIR

Appendix 1 – Issues List

Will engaging in the North Kent Wind 1 Project (the “Project”) in accordance with Renewable Energy Approval 5272-A9FHRL (the “REA”) cause serious harm to human health due to:

a) Intensified release of substances related to the radionuclide decay chain existing in the bedrock and their transfer into the water and atmosphere as a result of construction and operation of the Project;

b) Elevated levels of substances related to the radionuclide decay chain in groundwater and water wells;

c) Long-term human exposure to substances related to the radionuclide decay chain through water and air causing health problems including cancer; and,

d) Inadequacy of preventative and remedial measures in the REA, including those to monitor and contain the substances related to the radionuclide decay chain that are present?

Will engaging in the Project in accordance with the REA cause serious and irreversible harm to the natural environment due to:

b) Contamination of groundwater and water wells as a result of elevated levels of substances related to the radionuclide decay chain; and,

c) Inadequacy of preventative and remedial measures in the REA, including those to monitor and contain the substances related to the radionuclide decay chain that are present?

If engaging in the Project in accordance with the REA will cause harm referred to in Issue 1 or Issue 2, or both, what is the appropriate remedy to be ordered by the Environmental Review Tribunal pursuant to section 145.2.1(4) of the Environmental Protection Act?

Appendix 2 – Revised Schedule of Events

September 2, 2016 Appellant’s additional disclosure and service of documents to be relied on at the Hearing Filing with the Tribunal of Written Statements of Participants and Presenters

September 23, 2016 Service of Respondents’ documents to be relied on at the Hearing

September 30, 2016 Service of Appellant’s reply documents to be relied on at the Hearing

October 3, 2016 (revised) Service and filing with the Tribunal of Witness Statements and documents to be relied on at the Hearing

October 5, 2016 Hearing Day 1 Full Day: Kevin Jakubec, Michele Howes, Laurier Cartier, Peter Hensel, Ken Wade

October 6, 2016 Hearing Day 2 Half-day: Completion of Appellant witnesses from Hearing Day 1 Half-day: Terry Carter

October 11, 2016 Hearing Day 3 Half-day: Dr. Mark-Paul Buckingham (via videoconference) Half-day: William Clarke

October 12, 2016 Hearing Day 4 Half-day: Dr. William Sawyer (via videoconference) Half-day: Additional time for Appellant witnesses (if necessary)

October 13, 2016 (revised) Hearing Day 5 Presenters and Participants Start of Respondents’ witnesses if time permits

October 14, 2016 Hearing Day 6 Respondents’ witnesses

October 25, 2016 Hearing Day 7 Respondents’ witnesses

October 26, 2016 Hearing Day 8 Respondents’ witnesses

October 27, 2016 Hearing Day 9 Respondents’ witnesses and reply evidence (if permitted by the Tribunal)

November 7, 2016 Service and filing of Appellant’s written submissions

November 10, 2016 (revised) Service and filing of Municipality of Chatham-Kent’s written submissions

November 14, 2016 Service and filing of Respondents’ written submissions

November 17, 2016 Hearing Day 10 Service and filing of Appellant’s written reply submissions Oral submissions (if required by the Tribunal)

If there is an attachment referred to in this document, please visit www.elto.gov.on.ca to view the attachment in PDF format.

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