Knoppke v. Ontario (Environment and Climate Change), 2017 CanLII 5193

Tribunal de l’environnement

ISSUE DATE: February 02, 2017

CASE NO.: 16-084

PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended

Appellant: Dieter H. Knoppke

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Order to retain the services of Qualified Person to produce and implement a Well Management Plan

Reference No.: 2400-ACVPJF-DO

Property Address/Description: 1033, 1025 & 1037 Bayview Point Road

Municipality: Lake of Bays

Upper Tier: District Municipality of Muskoka

ERT Case No.: 16-084

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

Heard: December 13, 2016 by telephone conference call

APPEARANCES:

Parties

Counsel/Representative+

Dieter Hubert Knoppke Kayla R. Theeuwen Elizabeth Glasbergen (student-at-law)

Director, Ministry of the Environment and Climate Change Sylvia Davis

Alex Krek Zoë Thoms

Ingeborg Sickinger John Sickinger+ Ralph Sickinger+

William and Dianne Klein Dianne Klein+

Participants

Henry Fischler Self-represented

DECISION DELIVERED BY MAUREEN CARTER-WHITNEY

REASONS

Background

1On August 26, 2016, Chris Hyde, Director, Ministry of the Environment and Climate Change (“MOECC”) issued Director’s Order No. 2400-ACVPJF-DO (“Director’s Order”) to Dieter Hubert Knoppke (“Appellant”). The Director’s Order confirmed Provincial Officer’s Order No. 2400-ACVPJF issued by MOECC Provincial Officer and District Engineer John Kaasalainen on August 17, 2016 (“Order”) regarding a fuel oil spill dating back to 1990 on cottage property in the Lake of Bays, District Municipality of Muskoka and subsequent concerns relating to groundwater contamination and impacts on nearby properties. The Provincial Officer’s Order required the Appellant to undertake several items, including retaining a qualified person to create and implement a Well Management Plan (“WMP”) to address the potential adverse effects caused by the discharge into one or more wells located at 1033, 1025 and 1037 Bayview Point Road (“Sites”), and to allow for an uncompromised delineation of the extent of the spill.

2On September 7, 2016, the Appellant appealed the Director’s Order to the Environmental Review Tribunal (“Tribunal”).

3By way of correspondence dated November 2, 2016, counsel for the Director advised the Tribunal that the Director and the Appellant had reached a settlement agreement in this matter, and provided the Minutes of Settlement (“MOS”), executed November 2, 2016, which are attached as Appendix 1 to this decision.

4The MOS state that the Appellant has complied with items 1 through 4 of the Provincial Officer’s Order. Under the MOS, the Director and the Appellant have agreed that work to be performed under items 6 and 7 of the Provincial Officer’s Order may be limited to a total of 12 separate monitoring events, to occur roughly one month apart, culminating in a final report to the MOECC. The parties jointly propose the following amendments to the Provincial Officer’s Order to the Tribunal:

Amending Item No. 6 to state:

Within two (2) months of obtaining the data from the 12th monthly monitoring event and no later than 15 months from the date notice is provided to the undersigned Provincial Officer under Item No. 5 of this order, ensure the Qualified Person produces a written report (the “Final Report”), prepared in accordance with acceptable geoscientific practices, detailing the following:

(a) The records required to be kept during implementation of the Well Management Plan;

(b) An interpretation of the data provided by the records described at Item No. 6(a) of this order; and

(c) Recommendations, based on the interpretation required by Item No. 6(b) of this order, as to the most appropriate next steps to ensure the protection and conservation of the natural environment.

Amending Item No. 7 to state:

Within two (2) months of obtaining the data from the 12th monthly monitoring event and no later than 15 months from the date notice is provided to the undersigned Provincial Officer under Item No. 5 of this order, ensure the Qualified Person submits the Final Report to the undersigned Provincial Officer or his designate.

5The MOS state that, if the Tribunal accepts the proposed amendments to the Provincial Officer’s Order, the Appellant shall withdraw his appeal. They also set out the parties’ agreement that the MOS do not limit: the authority of the MOECC to issue orders to the Appellant or any others in respect of the matters outlined in the Provincial Officer’s Report attached to the Provincial Officer’s Order; the authority of the MOECC to lay charges under environmental legislation against the Appellant; or the Appellant’s right to defend against such charges.

6The WMP required under the Provincial Officer’s Order, as confirmed by the Director’s Order, is set out in letters dated October 13, 2016 and November 23, 2016 from BluMetric Environmental Inc. (“BluMetric”), the consultant retained by the Appellant to develop the WMP.

7On December 1, 2016, Sylvia Davis, counsel for the Director, sent an email to the Tribunal and the parties, including those requesting status, to convey the Director’s position that the finalized WMP, as approved by the Director, fulfilled the requirements of item 3 of the Provincial Officer’s Order and that the Appellant had also complied with items 1, 2 and 4 of the Provincial Officer’s Order. She stated that: on November 10, 2016, MOECC staff provided notice to the Appellant, in accordance with item 5 of the Provincial Officer’s Order, that he could proceed with implementation of the WMP; and on November 15, 2016, Blumetric visited the Sites and commenced implementation of the WMP. Ms. Davis further stated that it is the Director’s position that the Appellant has complied with item 5 of the Provincial Officer’s Order.

8On December 9, 2016, Zoë Thoms, counsel for Alex Krek, wrote to the Tribunal, copying the parties, to request that its acceptance of the proposed settlement agreement be subject to the following condition:

In consideration for the parties consenting to the dismissal of the Knoppke Appeal on the basis of the Minutes of Settlement between the MOECC Director and Mr. Knoppke, and given that the majority of the monitoring and sampling events undertaken by Mr. Knoppke’s experts, BluMetric, will occur at wells located on the Krek and Sickinger properties, it is appropriate that all parties receive a copy of all field notes, communications, data, photographs and any other information, data or documentation generated by BluMetric (collectively without limitation “Documentation”) at or as a result of its attendances at the properties to undertake the various monitoring and sampling events as required under the Director’s Order. Accordingly, the Tribunal hereby orders Mr. Knoppke and BluMetric to provide forthwith to all parties legible electronic copies of all Documentation herein described following each sampling event and, upon request, hard copies of same.

9On December 13, 2016, the Tribunal conducted a pre-hearing conference by telephone conference call (“TCC”) in order to consider the proposed settlement agreement. In addition to the counsel for the Director and the Appellant, a number of individuals appeared on the TCC to request status in this matter. There were no objections to any of these requests, and the Tribunal is satisfied that these individuals are property owners in the area of the Sites and have a clear interest in the matter. On this basis, as requested, the Tribunal awarded party status to Alex Krek, Ingeborg Sickinger and William and Dianne Klein, and participant status to Henry Fischler.

Issue

10The issue is whether the Tribunal should accept the proposed settlement and withdrawal of the appeal pursuant to Rule 201 of the Tribunal’s Rules of Practice.

Relevant Rule

11The following Rule applies:

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

12This matter has a long history, dating back to a fuel oil spill in 1990 on Mr. Krek’s property and subsequent concerns relating to groundwater contamination and impacts on nearby properties. During the discussion of the settlement agreement, the parties provided some background information on this matter, which has been the subject of previous appeals and numerous Tribunal orders. The added parties and participant raised some questions relating to their ongoing concerns about contamination that were addressed by MOECC staff present on the TCC. For example, John Sickinger requested that Ms. Sickinger be notified five days prior to anyone entering her property, and the MOECC and Ms. Sickinger came to an agreement on how notice would be provided.

13As context for the settlement agreement, Ms. Davis referred to the Tribunal’s September 8, 2016 decision in Krek v. Ontario (Ministry of the Environment and Climate Change), [2016] O.E.R.T.D. No. 40. She notes that a report by the MOECC’s Environmental Reporting and Monitoring Branch (“ERMB”), dated December 11, 2015, found no contamination of Lake of Bays and no evidence of present-day impacts relating to the historic oil spill. Ms. Davis further notes that the Tribunal accepted, at para. 16 and 17 of that decision, that there is currently no credible evidence that the 1990 spill on the Krek property is the source of the current contamination at the Sickinger well, and the Tribunal also accepted the evidence of the ERMB report.

14The Director submits that the settlement agreement complies with Rule 201 in that it is consistent with the purposes and provisions of the Environmental Protection Act (“EPA”) and is in the public interest. The Director states that the only change contemplated by the settlement agreement is that the work required under the Provincial Officer’s Order will be limited to one year. The Director submits that the settlement agreement does not change the nature of the work required by the Provincial Officer’s Order, which is already under way, nor does it limit the Director’s authority to issue further orders if required. The Director endorses the condition proposed by Ms. Thoms and suggests it be made part of the Tribunal’s order.

15The Appellant asks the Tribunal to accept the settlement agreement and has no objection to the condition proposed by Ms. Thoms if the settlement agreement is accepted.

16As noted above, Ms. Thoms has proposed this condition on behalf of Mr. Krek, and asks that it be included in the Tribunal’s order. She submits that all information and data obtained by BluMetric should be provided to the parties following each sampling event, rather than waiting to receive annual reports. With the inclusion of this condition, Mr. Krek, Ms. Sickinger, the Kleins and Mr. Fischler have no objection to the settlement agreement.

17Having reviewed the MOS and considered the submissions of the parties and participant, the Tribunal finds that the settlement agreement, subject to the proposed condition, is consistent with the purpose and provisions of the EPA and is in the public interest as it will allow the required testing to proceed and ensure that the parties receive timely notification of information related to monitoring and sampling of the wells. The Tribunal is satisfied that, while the settlement agreement limits the work to be performed under items 6 and 7 of the Provincial Officer’s Order to one year, there is no limitation on the MOECC’s authority to issue future orders to the Appellant or any others.

18Therefore, the Tribunal accepts the settlement agreement subject to the condition proposed by Ms. Thoms, as set out below.

DECISION

19The Tribunal orders that:

The settlement is accepted and Provincial Officer’s Order No. 2400-ACVPJF issued by John Kaasalainen on August 17, 2016, confirmed by Director’s Order No. 2400-ACVPJF-DO issued by Chris Hyde on August 26, 2016, is amended as follows:

a. Item No. 6 shall be amended to read as follows:

(a) The records required to be kept during implementation of the Well Management Plan;

(b) An interpretation of the data provided by the records described at Item No. 6(a) of this order; and

(c) Recommendations, based on the interpretation required by Item No. 6(b) of this order, as to the most appropriate next steps to ensure the protection and conservation of the natural environment.

b. Item No. 7 shall be amended to read as follows:

Within two (2) months of obtaining the data from the 12th monthly monitoring event and no later than 15 months from the date notice is provided to the undersigned Provincial Officer under Item No. 5 of this order, ensure the Qualified Person submits the Final Report to the undersigned Provincial Officer or his designate.

The settlement is accepted with the addition of the following condition:

In consideration for the parties consenting to the dismissal of the Knoppke Appeal on the basis of the Minutes of Settlement between the MOECC Director and Mr. Knoppke, and given that the majority of the monitoring and sampling events undertaken by Mr. Knoppke’s experts, BluMetric, will occur at wells located on the Krek and Sickinger properties, it is appropriate that all parties receive a copy of all field notes, communications, data, photographs and any other information, data or documentation generated by BluMetric (collectively without limitation “Documentation”) at or as a result of its attendances at the properties to undertake the various monitoring and sampling events as required under the Provincial Officer’s Order and confirmed by the Director’s Order. Accordingly, the Tribunal hereby orders Mr. Knoppke and BluMetric to provide forthwith to all parties legible electronic copies of all Documentation herein described following each sampling event and, upon request, hard copies of same.

The appeal is dismissed.

Settlement Agreement Accepted

Order Amended

Appeal Withdrawn

Appeal Dismissed

“Maureen Carter-Whitney”

MAUREEN CARTER-WHITNEY

VICE-CHAIR

Appendix 1 – 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

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