Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE:
November 10, 2016
CASE NO(S):
15-072 and
15-132
PROCEEDING COMMENCED UNDER section 139(1)(c) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellant:
Kimco Steel Sales Limited
Respondent:
Director, Ministry of the Environment and Climate Change
Subject of appeal:
Refusal to grant a Proposed Amendment to an Environmental Compliance Approval
Reference No.:
2952-9GRK8G
Property Address/Description:
1325 John Counter Boulevard
Municipality:
Kingston
Upper Tier:
County of Frontenac
ERT Case No.:
15-072
ERT Case Name:
Kimco Steel Sales Limited v. Ontario (Environment and Climate Change)
PROCEEDING COMMENCED UNDER section 139(1)(c) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellant:
Kimco Steel Sales Limited
Respondent:
Director, Ministry of the Environment and Climate Change
Subject of appeal:
Refusal of an Environmental Compliance Approval for a waste disposal site (transfer)
Reference No.:
2952-9GRK8G
Property Address/Description:
1352 John Counter Boulevard
Municipality:
Kingston
Upper Tier:
County of Frontenac
ERT Case No.:
15-132
ERT Case Name:
Kimco Steel Sales Limited v. Ontario (Environment and Climate Change)
Heard:
October 21, 2016 by telephone conference call
APPEARANCES:
Parties
Counsel
Director, Ministry of the Environment and Climate Change
Paul McCulloch
Kimco Steel Sales Limited
Raivo Uukkivi
John Westendorp Enterprises Inc.
Charles Birchall
Participant
Interprovincial Insulation Incorporated
Charles Birchall
DECISION DELIVERED BY HUGH S. WILKINS
REASONS
Background
1On February 21, 2014, Kimco Steel Sales Limited (“Appellant”) submitted an application to amend Environmental Compliance Approval No. A380112 (“ECA”), which permits it to operate a Waste Disposal Site and Waste Transfer Site located at 1325 John Counter Boulevard in the City of Kingston, Ontario (“Site”). The application seeks to amend the ECA to permit the Appellant to accept and transfer asbestos-contaminated materials at the Site.
2The Appellant alleges that on July 9, 2015, the Director refused to grant the Appellant’s proposed amendment. On July 23 and 24, 2015, the Appellant wrote to the Environmental Review Tribunal (“Tribunal”) to appeal the Director’s actions. The proceeding arising from this request was designated as Tribunal Case No. 15-072 (“July 2015 Appeal”).
3On August 12, 2015, the Tribunal received correspondence from the Director stating that he had not refused the Appellant’s application and that the appeal request was premature.
4On August 27, 2015, the Tribunal held a telephone conference call (“TCC”) with the Parties at which time they informed the Tribunal that the Appellant would provide the Director with further supporting materials and that the Director would issue a decision on whether to grant the Appellant’s application by September 30, 2015.
5On September 30, 2015, the Director issued Notice of Refusal No. 2952-9GRK8G (“Notice of Refusal”), refusing the Appellant’s application.
6On October 15, 2015, the Appellant wrote to the Tribunal to appeal the Director’s Notice of Refusal. The proceeding arising from this request was designated as Tribunal Case No. 15-132 (“October 2015 Appeal”).
7A pre-hearing conference (“PHC”) for both the July 2015 Appeal and the October 2015 Appeal was held in Kingston, Ontario on February 8, 2016 at which the Tribunal granted party status to John Westendorp Enterprises Inc. (“Westendorp”) and participant status to Interprovincial Insulation Incorporated (“Interprovincial”) in both proceedings. Subsequent to the PHC, the parties engaged in Tribunal-assisted mediation.
8On September 26, 2016, the Tribunal held a TCC at which the parties informed the Tribunal that they had reached a settlement.
9On October 14, 2016, the Tribunal received correspondence from the Director providing submissions in support of the proposed settlement and a copy of the proposed amended ECA. On the Director’s own initiative and on consent of the parties, the proposed amended ECA was revised and forwarded to the Tribunal on October 21, 2016. The proposed amended ECA is attached as Appendix 1 to this Decision.
10On October 21, 2016, the Tribunal held a TCC to hear submissions on the proposed withdrawal of the October 2015 Appeal pursuant to Rule 201 of the Tribunal’s Rules of Practice (“Rules”). On the same day, the Tribunal received a letter from the Appellant stating that it also wished to withdraw the July 2015 Appeal pursuant to Rule 198.
Relevant Legislation and Rules
11The following are the relevant provisions of the Environment Protection Act (“EPA”), Regulations and the Rules:
EPA
Purpose of the Act
3.(1) The purpose of this Act is to provide for the protection and conservation of the natural environment.
Definitions, Part V
- In this Part,
“waste disposal site” means,
(a) any land upon, into, in or through which, or building or structure in which, waste is deposited, disposed of, handled, stored, transferred, treated or processed, and
(b) any operation carried out or machinery or equipment used in connection with the depositing, disposal, handling, storage, transfer, treatment or processing referred to in clause (a);
Ontario Regulation 347 (General - Waste Management) (“O. Reg. 347”)
Management of Asbestos Waste
- No person shall manage asbestos waste except in accordance with the following:
7 Asbestos waste being transported from the location at which it is generated,
i. shall be transported,
A. by a driver trained in the management of asbestos waste,
B. as directly as may be practicable, to the waste disposal site at which disposal of the asbestos waste is intended to take place,
ii. shall not be transferred to a transfer station or other waste disposal site where disposal of the asbestos waste will not take place, but it may be transported to a waste disposal site that is subject to an environmental compliance approval that specifically authorizes acceptance and processing of asbestos waste,
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 there has been a proposed withdrawal of an appeal as part of a settlement agreement not objected to by any Party that alters the decision under appeal, the Tribunal shall review the settlement agreement and consider whether the agreement is consistent with the purpose and provisions of the relevant legislation and whether the agreement is in the public interest. The Tribunal shall also consider the interests of Participants and Presenters. After consideration of the above factors, the Tribunal may decide to continue with the Hearing or issue a decision dismissing the proceeding.
Issues
12The issues to be addressed are whether the Tribunal should:
accept the proposed withdrawal of the October 2015 Appeal and dismiss the corresponding proceeding under Rule 201; and
accept the proposed withdrawal of the July 2015 Appeal and dismiss the corresponding proceeding under Rule 199.
Discussion, Analysis and Findings
Issue 1: Proposed Withdrawal of the October 2015 Appeal
13Under Rule 201, where there has been a proposed withdrawal of an appeal as part of a settlement agreement not objected to by any Party that alters the decision under appeal, the Tribunal must determine whether the proposed agreement is consistent with the purpose and provisions of the relevant legislation and whether the proposed agreement is in the public interest. It must also consider the interests of any participants and presenters.
14The Director states that the main issue in the appeal was the interpretation of para. 7 of s. 17 of O. Reg. 347. He states that he initially interpreted the section to permit the handling of asbestos waste only at properly designated waste disposal sites and not at waste transfer stations. Finding that such an interpretation would be restrictive and inconsistent with the definition of waste disposal site in s. 25 of the EPA, which includes operations involving the handling, storage or transfer of waste, the parties came to an agreement that the Director can approve an application for an asbestos waste transfer station under para. 7 of s. 17, subject to the Director assessing the merits of the application and determining whether to impose conditions consistent with the purposes of the EPA. In this regard, the Director submits that a transfer station can provide a cost-effective and accessible means for a generator of small amounts of asbestos waste to dispose of the waste properly and that the establishment and operation of an asbestos transfer station can be protective of the natural environment as it may facilitate the proper disposal of asbestos waste.
15Regarding the ECA amendment proposed by the Appellant, the Director submits that the proposed amendment includes strict conditions to ensure that asbestos waste is accepted, stored, handled and transferred properly at the Site, including requirements regarding signage and labeling, implementation of waste inspection protocols, storage of asbestos, staff training on asbestos handling procedures, use of appropriate safety equipment and air sampling. The Director submits that these requirements are in addition to the requirements set out in s. 17 of O. Reg. 347.
16The Director states that there are few asbestos waste disposal sites in eastern Ontario and that it is in the public interest that the Director facilitate the proper disposal of this type of waste. He states that the air sampling requirement in the proposed ECA amendment is a robust requirement that should provide confirmation that the Appellant is properly disposing of the waste over the first six months of its operations as an asbestos waste transfer station. He states that if the air sampling shows exceedences, the Director may use any of his powers under the EPA, including ordering further amendments to the ECA, to address the situation.
17The Director states that a Ministry of the Environment and Climate Change (“MOECC”) senior review engineer reviewed the proposed ECA amendment and recommended its issuance. Based on this and his own review of the proposed amendment, the Director states that he is satisfied that the conditions in the proposed ECA amendment will ensure that the Appellant’s proposed asbestos transfer station will not cause any adverse effects and submits that the amendment’s air sampling programme will provide confirmation that these conditions are met.
18The Appellant, Westendorp and Interprovincial support the Director’s submissions.
19The purpose of the EPA, as set out in its s. 3, is to provide for the protection and conservation of the natural environment. After considering the submissions and interests of the parties and the participant, the Tribunal finds the proposed agreement (in this case, the proposed ECA amendment) is consistent with the purpose and provisions of the EPA and is in the public interest. The Tribunal agrees with the Director’s interpretation that para. 7 of s. 17 of O. Reg. 347 permits a transfer station to accept asbestos waste and finds that this interpretation can permit cost-effective and accessible disposal of asbestos waste. The Tribunal finds that this can be an effective tool for ensuring the protection and conservation of the natural environment. Based on the Director’s submissions, the Tribunal finds that the conditions set out in the proposed ECA amendment, including the air sampling programme and the strict conditions for the storage, handling and daily inspection of the waste, set robust requirements for the operation of the Appellant’s proposed asbestos waste transfer station.
20Based on the parties’ submissions, and as requested by them, the Tribunal accepts the proposed ECA amendment, accepts the Appellant’s withdrawal of the October 2015 appeal, and dismisses that appeal.
Issue 2: Proposed Withdrawal of the July 2015 Appeal
21Rule 198 requires that parties, participants and presenters have ten days during which to object to a letter from an appellant requesting withdrawal of its appeal.
22Rule 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.
23With respect to the proposed withdrawal of the July 2015 Appeal, the parties have differing views as to whether the Director made a decision and whether the July 2015 Appeal was properly commenced. The Tribunal has not been requested to make a finding on this issue at this time. Assuming that there was a Director’s decision, the Tribunal notes that there is no settlement agreement concerning the July 2015 Appeal and that the Director’s decision will not be altered. The 10-day notice period under s. 198 ended on October 31, 2016 without any objections being filed with the Tribunal. The Tribunal finds that the Appellant has complied with Rules 198 and 199, and, therefore, under Rule 199, the July 2015 Appeal is dismissed.
DECISION
24The Tribunal accepts the withdrawal of the appeals in Tribunal File Nos. 15-072 and 15-132 and dismisses those appeals.
25The Tribunal orders the Director to issue the amended ECA as set out in Appendix 1 to this Decision.
Appeals Dismissed
Director Ordered to Issue Amended Approval
“Hugh S. Wilkins”
HUGH S. WILKINS
MEMBER
Appendix 1 - Amended Approval
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