Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: October 14, 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: September 22 and 27, 2016 by telephone conference call
APPEARANCES:
| Parties | Counsel/Representative⁺ |
|---|---|
| 1350095 Ontario Ltd. and Edwin M. Robertson | Matthew Gardner |
| Gerald Douglas Warne | Stewart McLellan⁺ |
| Regional Municipality of Niagara | Leonard Griffiths and Jessica Boily |
| Presenter | |
|---|---|
| Iain McQuiston | Self-represented |
DECISION DELIVERED BY KAREN KRAFT SLOAN AND HUGH S. WILKINS
REASONS
Background
1On March 19, 2015, the Director, Ministry of the Environment and Climate Change issued Order No. 7344-9UKF6C (“Director’s Order”) to a number of persons regarding a spill of environmental contaminants including toluene and acetone at 833 Helena Street, Fort Erie (“Site”) in the Regional Municipality of Niagara (“Region”). Several persons named in the Director’s Order appealed to the Environmental Review Tribunal (“Tribunal”) under s. 140 of the Environmental Protection Act (“EPA”). Those 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 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 (“s. 100.1 Order”) that the Region incurred 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 and the appeal file numbers are listed in Appendix 1.
4A preliminary hearing in this proceeding was held by telephone conference call (“TCC”) on January 6, 2016, during which the Tribunal granted party status to the Corporation of the Town of Fort Erie (“Town”) and addressed procedural issues. The Town subsequently withdrew its party status on July 15, 2016.
5On March 9 and 11, 2016, the Tribunal held status update TCCs during which the Region stated its intention to revoke the s. 100.1 Order as against the Appellants DTZ Barnicke Niagara Limited, Todd Howard Crawford, Taylor Wilson and Sanjay Nirula. On April 18, 2016, the Tribunal issued an order revoking the s. 100.1 Order as against those parties and dismissing their appeals.
6A further status update TCC was held on June 14, 2016 during which Iain McQuiston, an orderee under the s. 100.1 Order, was granted presenter status. On June 29, 2016, the Tribunal issued an order granting presenter status to Mr. McQuiston.
7On September 13, 2016, the Tribunal received a letter from the Region stating that it intended to revoke the s. 100.1 Order as against Gerald Douglas Warne, an Appellant who had recently passed away.
8On September 21, 2016, the Tribunal received a letter from the Appellants 1350095 Ontario Ltd. and Edwin Robertson stating that they wished to withdraw their appeals and have the proceedings dismissed.
9The Tribunal held TCCs on September 22 and 27, 2016 to hear submissions on the proposed revocation of the s. 100.1 Order as against Mr. Warne, the withdrawal of the appeals by 1350095 Ontario Ltd. and Mr. Robertson, and the dismissal of the proceedings.
Relevant Legislation and Rules
10The following are the relevant provisions of the EPA and the Tribunal’s Rules of Practice:
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
A Proponent or Applicant who proposes to withdraw an application, an Appellant who proposes to withdraw an appeal, or a Director, Risk Management Inspector or Official, Authority or municipality who proposes to revoke a decision that is the subject of the appeal shall notify the Tribunal, other Parties, Participants and Presenters by letter. Any Party, Participant or Presenter who objects to the proposed withdrawal of an appeal or revocation, with the exception of the revocation of an order made under section 74 of the Ontario Water Resources Act, shall notify the Tribunal and the other Parties, Participants and Presenters within ten days of the date of the letter.
Where there has been a proposed withdrawal of an appeal agreed to by all Parties and the decision under appeal is not altered by a settlement agreement, a proposed withdrawal of an application, or a proposed revocation of an order made under section 74 of the Ontario Water Resources Act, the Tribunal shall issue a decision dismissing the proceeding.
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.
Issues
11The issues to be addressed are whether the Tribunal should:
accept the proposed revocation of the s. 100.1 Order as against Mr. Warne and dismiss the corresponding proceeding under Rule 202; and
accept the proposed withdrawal of the appeals brought by 1350095 Ontario Ltd. and Mr. Robertson and dismiss the corresponding proceeding under Rule 199.
Discussion, Analysis and Findings
Issue 1: Proposed Revocation of the s. 100.1 Order as against Mr. Warne
12Rule 198 requires that the parties, participants and presenters be notified by letter and allowed ten days to object when a revocation of the order under appeal is proposed.
13Rule 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 to either continue with a proceeding or to dismiss it.
14During the TCC on September 27, 2016, the Region submitted that the EPA allows a municipality to recover costs incurred in the event of a spill but that in this case, Mr. Warne’s estate has insufficient resources to make it reasonable for the Region to pursue payment. The Region submitted that it is in the public interest to take a thoughtful and considerate approach when it is not reasonable to pursue recovery of the costs of a spill. It submitted that 1350095 Ontario Ltd. and Mr. Robertson wish to withdraw their appeals and that the Region may recover costs through them.
15The representative of Mr. Warne’s estate stated that it supports the proposed revocation of the provisions of the s. 100.1 Order as against Mr. Warne, and that it would not be in the public interest to pursue recovery where there are no funds available to recover. 1350095 Ontario Ltd. and Mr. Robertson took no position on this issue, while Mr. McQuiston supported the proposed revocation.
16The Tribunal has considered the parties’ and presenter’s interests and the submissions made before it, and finds that the proposed revocation is consistent with the purpose and provisions of the EPA and is in the public interest. The Tribunal finds that the Region is pursuing recovery of its costs in a reasonable manner under s. 100.1 of the EPA and finds that the environmental protection and conservation purposes of the EPA will not be adversely affected by the revocation. The Tribunal revokes the provisions of the s. 100.1 Order as against Mr. Warne and dismisses the appeal in Tribunal File No. 15-099 pursuant to Rule 202.
Issue 2: Proposed Withdrawal of Appeals by 1350095 Ontario Ltd. and Mr. Robertson
17Rule 198 requires that parties, participants and presenters have ten days during which to object to a letter requesting withdrawal of an appeal.
18Rule 199 does not provide for Tribunal discretion when a withdrawal of an appeal is requested if all of the parties agree and the decision under appeal is not altered by a settlement agreement.
19With the dismissal of the appeal brought by Mr. Warne, the only remaining parties in the proceeding are the Region, 1350095 Ontario Ltd. and Mr. Robertson, all of whom consent to the proposed withdrawal of the appeals. The decision under appeal, the s. 100.1 Order, is not altered by a settlement agreement and the 10-day notice period under s. 198 ended on October 3, 2016 without any objections being filed with the Tribunal. The Tribunal finds that 1350095 Ontario Ltd. and Mr. Robertson have complied with Rules 198 and 199, and, therefore, under Rule 199, the appeals brought by 1350095 Ontario Ltd. and Mr. Robertson (Tribunal File Nos. 15-097 and 15-098) are dismissed.
DECISION
20The Tribunal accepts the revocation of the provisions of the s. 100.1 Order as against Mr. Warne, and the corresponding appeal in Tribunal File No. 15-099 is dismissed.
21The Tribunal accepts the withdrawal of the appeals brought by 1350095 Ontario Ltd. and Mr. Robertson, and dismisses the corresponding appeals in Tribunal File Nos. 15-097 and 15-098.
Order Revoked in Part
Appeals 15-097, 15-098 and 15-099 Dismissed
“Karen Kraft Sloan”
KAREN KRAFT SLOAN
MEMBER
“Hugh S. Wilkins”
HUGH S. WILKINS
MEMBER
Appendix 1 – Appellant List
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
Appendix 1
Appellant List
| Appellant Name | File No. |
|---|---|
| Sanjay Nirula | 15-096 (Appeal Dismissed) |
| 1350095 Ontario Limited | 15-097 |
| Edwin Robertson | 15-098 |
| Gerald Douglas Warne | 15-099 |
| DTZ Barnicke Niagara Limited | 15-100 (Appeal Dismissed) |
| Todd Howard Crawford | 15-101 (Appeal Dismissed) |
| Taylor Wilson | 15-102 (Appeal Dismissed) |