Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE:
May 16, 2017
CASE NO.:
15-169
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellants:
See Appendix 1 – Appellant List
Respondent:
Director, Ministry of the Environment and Climate Change
Subject of appeal:
Order for removal of waste ash from site
Reference No.:
6411-9M2G78
Property Address/Description:
23449 Woodbine Avenue
Municipality:
Town of Georgina
Upper Tier:
Regional Municipality of York
ERT Case No.:
15-169
ERT Case Name:
Keswick Presbyterian Church v. Ontario (Environment and Climate Change)
Heard:
April 12, 2017 by telephone conference call and in writing
APPEARANCES:
Parties
Counsel
Donald Constable, Mark Lawrence, Greenpath Inc., and Greenpath Eco Group Inc.
David Olesen
Keswick Presbyterian Church
Patrick Welsh and Stefan Politano (articling student)
Director, Ministry of the Environment and Climate Change
Danielle Meuleman and Jessica Rosenberg
DECISION DELIVERED BY MAUREEN CARTER-WHITNEY AND MARLENE CASHIN
REASONS
Background
1This decision relates to a settlement hearing to dispose of the outstanding appeals of Director’s Order No. 6411-9M2G78 (“2015 Director’s Order”). The remaining Appellants, as listed in Appendix 1 to this decision, propose to withdraw their appeals, and the parties request that the Environmental Review Tribunal (“Tribunal”) accept their Minutes of Settlement, amend the 2015 Director’s Order, and dismiss the appeals.
2In March of 2009, the Ministry of the Environment and Climate Change (“MOECC”) issued Certificate of Approval No. 6601-7P4J7C (“CofA”) to Greenpath Inc. for a waste disposal site located at 121 Watline Avenue in Mississauga, Ontario (“Watline Site”). The CofA, now an “Environmental Compliance Approval”, authorized use of the Watline Site for the processing of waste ash provided by the Regional Municipality of Peel (“Peel”) from its Algonquin Power Energy from Waste Facility.
3In 2009, the Keswick Presbyterian Church (“Church”) constructed a new building, driveway and parking lot on a property located at 23449 Woodbine Avenue, in the Town of Georgina in the Regional Municipality of York (“Church Site”). The MOECC alleges that fill deposited on the Church Site during construction was unprocessed waste ash from the Watline Site.
4The 2015 Director’s Order was issued on November 9, 2015 to Donald Constable, Greenpath Eco Group Inc., Greenpath Inc. and Mark Lawrence (collectively, the “Greenpath Parties”), Peel, and the Church, to take a number of steps including removing the waste.
5Peel, the Greenpath Parties, and the Church appealed, and requested a stay of, the 2015 Director’s Order. In an order dated April 14, 2016, the Tribunal granted a stay of Item Nos. 1, 2, 3, 4 and 6 of the 2015 Director’s Order until the final resolution of the appeals, but refused to stay Item No. 5 of the 2015 Director’s Order, which requires the Church to give a copy of the 2015 Director’s Order to every person acquiring an interest in the Church Site. Item Nos. 1, 2, 3, 4 and 6 require that: one or more Qualified Persons be retained to prepare and complete all work specified; confirmation be submitted of the retention of the Qualified Person(s); the waste ash be removed from the Church Site according to the procedures set out; a report summarizing the removal of the waste ash from the Church Site be submitted to the Director; and the Church register on title the Certificate of Requirement attached to the 2015 Director’s Order.
6The 2015 Director’s Order is similar to Director’s Order No. 6726-8YAN85-1, issued to the same parties and ordering the same actions on August 13, 2013 (“2013 Director’s Order”). That order was appealed to the Tribunal by the same Appellants as in this proceeding; those appeals were referred to as Tribunal File Nos. 13-110 to 13-115. The only substantive change between the 2013 Director’s Order and the 2015 Director’s Order is that the latter includes reference to the Director’s power to issue orders under s. 43 of the Environmental Protection Act (“EPA”).
7As noted above, the 2015 Director’s Order was issued on November 9, 2015. In an order dated November 13, 2015, the Tribunal ordered that a motion brought by Peel to revoke the 2013 Director’s Order as against it be heard separate from, and prior to, the appeals on the merits. On January 5, 2016, the Tribunal issued a decision revoking the 2013 Director’s Order and dismissing that proceeding.
8Peel subsequently filed a motion, heard on August 12, 2016, to revoke the 2015 Director’s Order as against it. The City of Toronto and the Ontario Waste Management Association were granted participant status for the purposes of Peel’s motion only, and filed materials in support of it. By order dated September 13, 2016, the Tribunal allowed Peel’s motion and revoked the 2015 Director’s Order as against it (“Revocation Order”). The Director subsequently brought a motion requesting that the Revocation Order be reviewed. In an order dated December 1, 2016, the Tribunal dismissed the Director’s motion for review of the Revocation Order.
9On March 29, 2017, the Tribunal convened a scheduled teleconference call (“TCC”), at which time the remaining parties, those being the Greenpath Parties, the Church, and the Director, informed the Tribunal that they were days away from reaching a settlement on all issues. They requested that the dates set for the hearing of the appeals, in April 2017, be vacated. The Tribunal granted the request to vacate the hearing dates, and also set April 12, 2017 for a settlement hearing to be held by TCC. In advance of the settlement hearing, the parties provided the Tribunal with written submissions regarding the proposed settlement, as well as their Minutes of Settlement, which included a proposed Amending Order.
10At the April 12, 2017 TCC, the Tribunal, having considered the oral and written submissions of the parties, gave an oral decision as follows:
The Tribunal accepts the parties’ agreement to settle this matter, in accordance with the Minutes of Settlement, with the amendment of Director’s Order No. 6411-9M2G78 and the withdrawal of the appeals. The Director is directed to amend Director’s Order No. 6411-9M2G78 in accordance with the Amending Order attached to the Minutes of Settlement. In accordance with Rule 201, the appeal is dismissed.
These are the reasons for that decision.
Issue
11The issue is whether the Tribunal should accept the proposed amendment of the 2015 Director’s Order and the proposed withdrawal of the appeals, based on the Minutes of Settlement and their attached “Amending Order”, as being consistent with the purpose and provisions of the EPA, and in the public interest.
Relevant Legislation and Rules
12The relevant provisions of the EPA and the Tribunal’s Rules of Practice that apply to this proceeding are as follows:
- (1) The purpose of this Act is to provide for the protection and conservation of the natural environment.
Rules of Practice
- 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.
Discussion, Analysis and Findings
13Under Rule 201, a proposed withdrawal of an appeal, pursuant to a settlement agreement that alters the decision under appeal, must be presented to the Tribunal for review.
14All parties in this matter consent to the proposed amendment of the 2015 Director’s Order and the proposed withdrawal of the appeals based on the implementation of the executed Minutes of Settlement. There are no participants or presenters in this proceeding whose interests must be considered. Therefore, the issue that remains under Rule 201 is to determine whether the Minutes of Settlement, including the proposed Amending Order, are consistent with the purpose and the provisions of the relevant legislation, namely the EPA, and are in the public interest.
15The Director and the Appellants submit that the Minutes of Settlement and included proposed amendments are consistent with the purposes and provisions of the EPA and are in the public interest.
16The Director’s written submissions set out clearly the reasons for the parties’ submission that the Minutes of Settlement be accepted, as follows:
In brief, the Amending Order continues to require the removal of the waste ash from the Church Site and ensures proper disposal at an approved waste disposal site(s). These amendments do not alter the work to be done, but vary the compliance dates. The Greenpath Parties are required to remove all of the Waste Ash from the site … within 2 years after the new order date. If not removed within this time, the Church is required to remove all of the Waste Ash from the Site within 10 years after the new order date. The Amending Order also contains new items requiring both the Greenpath Parties and the Church to develop, submit, and implement a monitoring plan for the interim period until all of the waste is removed to the satisfaction of the Director.
The settlement reached is consistent with the purpose of the EPA and in the public interest for the following reasons:
The substantial elements of the work required by the Order under appeal are unchanged in the Amending Order.
The Amending Order varies the compliance dates, requiring removal of the waste ash within 2 years by the Greenpath Parties, and within 10 years by the Church. The longer timeframe for the Church is in the public interest because [the] Church is a registered charity, and has provided evidence that it is not in a financial position to clean up the waste within a shorter time period.
In order to account for the longer time periods, the Amending Order requires monitoring of the Site and capping of exposed waste in the interim. Taking these mitigation measures into account, the Director is satisfied that the proposed timeframe for the removal of the waste does not pose an unacceptable risk to the natural environment.
The settlement avoids the cost, time, and resources of a hearing, and allows additional resources to be directed to the work to be done and the protection of the environment.
17Counsel for the Church and the Greenpath Parties provided oral submissions and letters in writing confirming their agreement with the approach taken, the submissions of the Director, and the Minutes of Settlement as provided to the Tribunal.
18The Tribunal agrees with the approach proposed in the parties’ Minutes of Settlement, and finds that allowing for the removal of the waste by varying the compliance dates, while requiring monitoring of the Church Site and capping of exposed waste in the interim, is consistent with the purpose and the provisions of the EPA, and is in the public interest.
19The Tribunal finds that a hearing with respect to the 2015 Director’s Order is not required.
DECISION
20The Tribunal accepts the parties’ agreement to settle this matter, with the implementation of the Minutes of Settlement attached as Appendix 2 to this decision, the amendment of the 2015 Director’s Order, and the withdrawal of the appeals. The Director is directed to amend Director’s Order No. 6411-9M2G78, in accordance with the agreement of the parties, to implement the Minutes of Settlement attached as Appendix 2.
21In accordance with Rule 201, the appeals are dismissed.
Settlement Agreement Accepted
Director Directed to Amend Order
Appeals Withdrawn
Appeals Dismissed
“Maureen Carter-Whitney”
MAUREEN CARTER-WHITNEY
VICE-CHAIR
“Marlene Cashin”
MARLENE CASHIN
MEMBER
Appendix 1 – Appellant List
Appendix 2 – Minutes of Settlement
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.
Keswick Presbyterian Church
15-169
Donald Constable
15-170
Mark Lawrence
15-171
Greenpath Inc.
15-172
Greenpath Eco Group Inc.
15-173
The Regional Municipality of Peel
15-174 (Closed)