Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: November 16, 2017
CASE NO.: 16-081
PROCEEDING COMMENCED UNDER section 139(2) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellant: Terra International (Canada) Inc.
Respondent: Director, Ministry of the Environment and Climate Change
Subject of appeal: Terms and conditions imposed on an amended approval to consolidate existing certificates for the collection, treatment and disposal of effluent water into the St. Clair River
Reference No.: 4863-A47KMR
Property Address/Description: 161 Bickford Line (Courtright Plant Site)
Municipality: St. Clair Township
Upper Tier: County of Lambton
ERT Case No.: 16-081
ERT Case Name: Terra International (Canada) Inc. v. Ontario (Environment and Climate Change)
Heard: November 3, 2017 by telephone conference call
APPEARANCES:
| Parties | Counsel |
|---|---|
| Terra International (Canada) Inc. | Peter Brady |
| Director, Ministry of the Environment and Climate Change | Jessica Rosenberg |
DECISION DELIVERED BY GRAHAM REMPE AND MARCIA VALIANTE
REASONS
Background
1On June 24, 2016, Fariha Pannu, Director, Ministry of the Environment and Climate Change, issued Amended Environmental Compliance Approval No. 4863-A47KMR (“ECA”) to Terra International (Canada) Inc. (“Appellant”) with respect to its operations at 161 Bickford Line in Courtright, Ontario. The ECA consolidated several approvals respecting the collection and treatment of water and the disposal of effluent from the Appellant’s operations.
2The Appellant filed a notice of appeal with the Environmental Review Tribunal (“Tribunal”) on July 21, 2016. The central issue in the appeal is the management of ammonia and ammonium in an on-site stormwater management pond (“SWMP”).
3The parties requested that the Tribunal delay scheduling the pre-hearing conference so that they would have an opportunity to resolve the issues raised by the appeal. The parties reached an agreement and the pre-hearing conference was scheduled for the Tribunal to consider a proposed settlement. The parties submitted Minutes of Settlement to the Tribunal, attached to this decision as Appendix 1, on November 1, 2017. Schedule A of the Minutes of Settlement contains a draft Amended ECA (“draft Amended ECA”). The Minutes of Settlement and the draft Amended ECA were addressed at the pre-hearing conference, held by telephone conference call on November 3, 2017.
4At the pre-hearing conference, the Tribunal issued an oral decision, directing the Director to issue the draft Amended ECA, and dismissing the proceeding, with reasons to follow. These are the reasons for that decision.
Issues
5The issue is whether to accept the proposed Minutes of Settlement and dismiss the proceeding pursuant to Rule 201 of the Tribunal’s Rules of Practice (“Rules”).
Relevant Rules
6Rule 201 outlines the steps the Tribunal must take in reviewing a settlement agreement and deciding whether to dismiss an appeal:
- 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
7The parties are in agreement that the appeal should be resolved in accordance with the attached Minutes of Settlement. No other persons sought party, participant or presenter status, nor were any members of the public in attendance at the pre-hearing conference.
8In the ECA, the management of ammonia and ammonium in the SWMP was initially to be done through “best efforts” to design works to meet a specific effluent objective for “Ammonia plus Ammonium” in the discharge from the SWMP. The draft Amended ECA replaces this approach with new Conditions 10(4) to 10(7), which require submission to and approval by the Director of a work plan to fully delineate sources, locations, depths and extent of ammonia contamination, identify actions to be taken to decrease the ammonia concentration in the SWMP effluent, and a detailed monitoring plan, as well as annual reporting to the Director on progress in implementing the actions. The draft Amended ECA removes the ammonia plus ammonium effluent objective for the SWMP discharge, but adds a new one for pH. Other changes to the ECA are administrative in nature, intended to provide greater clarity and to correct the omission of one approval from the list of prior approvals to be revoked upon issuance of the ECA.
9The parties submit that the Minutes of Settlement are consistent with the purposes and provisions of the Environmental Protection Act and the Ontario Water Resources Act. They state that the draft Amended ECA provides for a more detailed and site-specific approach to addressing ammonia and ammonium while continuing to require that the parameters be monitored and meet the effluent limits at the point of discharge from the facility to the St. Clair River, in accordance with the Effluent Monitoring and Effluent Limits – Inorganic Chemical Sector – Regulation, O.Reg. 64/95, the applicable municipal and industrial strategy for abatement or “MISA” regulation. The SWMP is upstream of that discharge point; therefore, they submit, the draft Amended ECA protects the quality of water resources, consistent with the purposes and provisions of the legislation.
10The parties submit that the Minutes of Settlement are also in the public interest because they reflect a cooperative effort to improve the terms and conditions of the ECA, to the benefit of the parties and the public. This will also remove the need for a hearing of the appeal, saving the parties’ and the Tribunal’s resources.
11Based on the documents provided by the parties and their written and oral submissions, the Tribunal finds that the Minutes of Settlement meet the requirments of Rule 201, in that they are consistent with the purposes and provisions of the applicable legislation and are in the public interest.
DECISION
12The Tribunal directs the Director to issue an Amended ECA, in the form of Schedule A of the Minutes of Settlement, which are attached as Appendix 1 to this decision.
13The Tribunal dismisses the appeal.
Director Directed to Issue Amended ECA
Appeal Withdrawn
Appeal Dismissed
“Graham Rempe”
GRAHAM REMPE
MEMBER
“Marcia Valiante”
MARCIA VALIANTE
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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