Unterstab v. Ontario (Environment and Climate Change), 2016 CanLII 8505

ISSUE DATE: February 16, 2016

CASE NO.: 14-045

PROCEEDING COMMENCED UNDER section 41 of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28, as amended

Appellant: Claudia Unterstab

Instrument Holder: atPlay Adventures Inc.

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Terms and conditions imposed under section 20.3 of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended, for an Environmental Compliance Approval to establish sewage works servicing Long Point Beach Motel

Reference No.: 0790-9FKRSW

Property Address/Description: 12 Erie Boulevard

Municipality: Port Rowan

Upper Tier: County of Norfolk

ERT Case No.: 14-045

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

Heard: January 15, 2016 by telephone conference call

APPEARANCES:

Parties

Counsel

Claudia Unterstab

Brian Duxbury and T. David Marshall

atPlay Adventures Inc.

John Georgakopoulos and Joanna Vince

Director, Ministry of the Environment and Climate Change

Justin Jacob, Andrew Weretelnyk and Rebecca Crangle

Presenter

Pauline M. Halcovitch

Self-represented

DECISION DELIVERED BY JUSTIN DUNCAN AND HUGH S. WILKINS

REASONS

Background

1On February 13, 2014, Edgardo Tovilla, Director, Ministry of the Environment and Climate Change (the “MOECC”), issued Environmental Compliance Approval No. 0790-9FKRSW (the “ECA”) to atPlay Adventures Inc. (the “Instrument Holder”) pursuant to s. 20.3(1) of the Environmental Protection Act (the “EPA”). The ECA authorizes the establishment of sewage works at the Long Point Beach Motel, located at 12 Erie Boulevard, Port Rowan, in the Country of Norfolk, Ontario (the “Site”). The proposed sewage works would be made up of a tertiary sewage treatment system, a subsurface disposal system, and a stormwater management system.

2The approved tertiary sewage treatment system and subsurface disposal system are designed to process 26,100 litres per day. Sewage would enter the tertiary treatment system, be treated, and then be discharged into a subsurface disposal system consisting of three raised area beds.

3The ECA sets out treatment standards in the form of effluent objectives and limits, which apply at the point in the system where wastewater discharges from the tertiary sewage treatment system to the subsurface disposal system. The objectives and limits are set out for biological oxygen demand, total suspended solids, total nitrate, nitrite and ammonia as nitrogen, and total phosphorus. An effluent objective is also set for E. Coli. The total nitrate, nitrite and ammonia as nitrogen limit which cannot be exceeded in the ECA is 5.0 milligrams per litre (“mg/L”). The corresponding objective that the ECA requires the Instrument Holder to make best efforts to achieve is 3.0 mg/L.

4On June 17, 2014, a neighbour to the Site, Claudia Unterstab (the “Appellant”), was granted leave to appeal the ECA by the Environmental Review Tribunal (the “Tribunal”) (See: Unterstab v. Director, Ministry of the Environment, 2014 CarswellOnt 8401 (Ont. E.R.T.)). On June 25, 2014 and June 30, 2014, she filed notices of appeal with the Tribunal.

5The appeal was heard over seven days in February and March 2015 in Simcoe and in Toronto, Ontario and the Tribunal issued an order on September 18, 2015 directing the Director to reconsider certain variables that were used in calculating the ECA’s requirements for the system (See: Unterstab v. Director, Ministry of the Environment, 2015 CarswellOnt 14575 (Ont. E.R.T.)). Specifically, the Order directed the Director to reconsider the Instrument Holder’s ECA application based on:

(a) a peak daily flow rate of 400 litres per day per person; and

(b) a nitrogen concentration level of 50 mg/L for influent into the wastewater treatment system.

6The Tribunal further directed the Director to submit proposed ECA revisions to the Parties and then notify the Tribunal whether the Parties agreed to the revisions. The Tribunal directed that upon its receipt of notification from the Director regarding whether the Parties agree on revisions to the ECA, the Tribunal would schedule a telephone conference call (“TCC”) at which time next steps in the proceeding would be determined.

7On January 6, 2016, the Tribunal received correspondence from the Director stating that the Parties had agreed to revisions to the ECA as set out in Appendix 1 to this Decision. The revisions also incorporate a letter and report from the Instrument Holder’s consultant, MTE Consultants Inc., to the MOECC, which are attached as Appendix 2 to this Decision.

8On January 15, 2016, the Tribunal held a TCC at which time the parties submitted that they were of the view that the proposed revisions addressed the requirements in the Tribunal’s September 18, 2015 Order and stated that they all consented to the revisions. The Parties jointly requested that the Tribunal allow the appeal in part and order the Director to amend the ECA based on the proposed revisions.

Findings

9The Tribunal has reviewed the Director’s proposed amendments to the ECA and, based on the submissions of the parties, finds that the proposed amendments satisfy the requirements set out in the Tribunal’s September 18, 2015 Order.

10As a result, the Tribunal finds that the appeal should be allowed in part and the Director should be ordered to amend the ECA as set out in Appendix 1. With this decision, the automatic stay of the ECA pursuant to s. 42(1) of the Environmental Bill of Rights, 1993 is lifted.

DECISION

11The appeal is allowed in part.

12The Tribunal orders the Director to amend Environmental Compliance Approval No. 0790-9FKRSW, dated February 13, 2014, to include the amendments set out in Appendix 1 to this Decision.

Appeal Allowed in Part

Director Ordered to Amend ECA

“Justin Duncan”

JUSTIN DUNCAN

MEMBER

“Hugh S. Wilkins”

HUGH S. WILKINS

MEMBER

Appendix 1 - Amendments to Environmental Compliance Approval No. 0790-9FKRSW

Appendix 2 – Correspondence from MTE Consultants Inc. (“MTE”) to Nancy He, Senior Wastewater Engineer, MOECC, dated October 13, 2015

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