Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE:
January 5, 2018
CASE NO.:
16-105
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellant:
Cox Farms Ltd.
Respondent:
Director, Ministry of the Environment and Climate Change
Subject of appeal:
Order to ensure proper cover is established over fibreglass waste buried in a gravel pit
Reference No.:
6465-AC9QXS-1
Property Address/Description:
Lot 28, Concession 6
Municipality:
Township of Guelph/Eramosa
Upper Tier:
County of Wellington
ERT Case No.:
16-105
ERT Case Name:
Cox Farms Ltd. v. Ontario (Environment and Climate Change)
Heard:
November 14, 2017 by telephone conference call and in writing
APPEARANCES:
Parties
Counsel
Cox Farms Ltd.
Kevin M. Thompson
Director, Ministry of the Environment and Climate Change
Isabelle O’Connor
DECISION DELIVERED BY MAUREEN CARTER-WHITNEY AND MARLENE CASHIN
REASONS
Background
1On October 31, 2016, Amy Shaw, Director, Ministry of the Environment and Climate Change (“MOECC”) issued Director’s Order No. 6465-AC9QXS-1 (“Director’s Order”) to Cox Farms Ltd. (“Appellant”). The Director’s Order applies to a site located at Lot 28, Concession 6 in the Township of Guelph/Eramosa, County of Wellington (“Site”). Under a related field order issued by the MOECC in 1995, above-ground fibreglass waste was removed from the Site in 1997; additional fibreglass waste remains buried on the Site.
2The Director’s Order requires that the Appellant, by May 31, 2017: ensure that proper cover is maintained over fibreglass waste buried in a gravel pit on the Site to limit the potential for future airborne releases of fibreglass; provide written notification to the MOECC that proper cover has been established over the waste; and submit a site plan to the MOECC that shows a delineated waste area determined by a qualified environmental consultant.
3The Appellant filed a notice of appeal of the Director’s Order to the Environmental Review Tribunal (“Tribunal”) on November 14, 2016.
4The Tribunal commenced the Pre-hearing Conference (“PHC”) in this matter on February 9, 2017 in Rockwood, Ontario. Several neighbours of the Site attended the PHC as observers but they did not request formal status in the appeal. At the PHC, the parties advised the Tribunal that it would be premature to set dates for the hearing. The Appellant had begun the process of complying with part of the Director’s Order, and the Director was satisfied with what the Appellant had done as of that date to move toward full compliance.
5At the request of the parties, the PHC was adjourned for two months to allow the Appellant further time to retain a qualified consultant to proceed with delineation of waste at the Site.
6The PHC was continued by telephone conference call (“TCC”) on April 18, 2017, at which time Kevin M. Thompson, counsel for the Appellant, provided an update on the status of the work being done to delineate the waste. The parties requested that the PHC be further adjourned to allow that work to continue. The PHC was scheduled to continue by TCC on May 23, 2017.
7During the May 23, 2017 TCC, the Appellant requested a stay of the Director’s Order in its entirety for a period of approximately two months, until the end of July 2017. Noting the compliance date of May 31, 2017 for the work items in the Director’s Order, Mr. Thompson advised that additional time would be required for further investigations and negotiations by the parties directed towards resolving the appeal. The Director agreed and consented to the stay. The Tribunal granted the stay orally and subsequently issued an order dated May 29, 2017, staying the operation of the Director’s Order until July 31, 2017.
8On July 20, 2017, the PHC was reconvened by TCC. Mr. Thompson provided an update on the events that had taken place since the previous TCC on May 23, 2017. Mr. Thompson told the Tribunal that extensive on-site work had been done. He further advised that a report had been prepared and shared with the MOECC, but the MOECC had not had the time to completely review the report. Mr. Thompson requested a further continuation of the stay, until the end of August 2017, to allow for the review to be completed by the MOECC. The Tribunal granted the stay orally and subsequently issued an order dated July 26, 2017, staying the operation of the Director’s Order until August 31, 2017.
9On August 15, 2017, the PHC was reconvened by TCC. Mr. Thompson provided an update on the events that had taken place since the previous TCC on July 20, 2017. Mr. Thompson advised that the report, which had been prepared and shared with the MOECC, had been reviewed by the MOECC. He told the Tribunal that work had been proceeding but that some further removal of materials must be completed. Isabelle O’Connor, for the Director, confirmed that although on-site work had continued to be carried out, there was still further minor on-site work to be done, in order to comply with the requirements imposed by the MOECC in the Director’s Order. Mr. Thompson requested a further continuation of the stay, until the end of September 2017, to allow for the on-site work to be completed. The Tribunal granted the stay orally and subsequently issued an order dated August 28, 2017, staying the operation of the Director’s Order until September 30, 2017.
10On September 27, 2017, the PHC was reconvened by TCC. Mr. Thompson requested a further continuation of the stay currently in place. He advised the Tribunal that the MOECC requires that additional work be completed on-site in order for full compliance with the Director’s Order to be achieved. He stated that the parties agree that a further continuation of the stay, until November 17, 2017, would allow time for the remaining work to be completed. The parties indicated that the requested continuation of the stay was on consent. The Tribunal orally granted the continuation of the stay on the TCC, and subsequently issued an order dated October 17, 2017, staying the operation of the Director’s Order until November 17, 2017.
11On November 14, 2017, the PHC was reconvened by TCC once again. The parties advised the Tribunal that the Appellant had done further work on-site and reported on it to the MOECC, and that the Director is now satisfied that the Appellant has complied with the substance of the Director’s Order, which the parties confirmed had not been altered. Mr. Thompson said that he was seeking instructions from his client and undertook to withdraw the appeal formally in writing once he obtained those instructions.
12On December 20, 2017, Mr. Thompson provided the Tribunal with written confirmation of the withdrawal of the appeal.
Issue
13The issue is whether the appeal shall be dismissed because the proposed withdrawal of the appeal is agreed to by all parties and the Director’s Order is not altered.
Relevant Rules
14The relevant provisions of the Tribunal’s Rules of Practice (“Rules”) are as follows:
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.
Discussion, Analysis and Findings
15Under Rule 199 of the Tribunal’s Rules, the Tribunal shall dismiss an appeal where there has been a proposed withdrawal that has been agreed to by all parties, and the decision under appeal is not altered.
16The Appellant and the Director have confirmed with the Tribunal that they consent to the withdrawal of the appeal and that the Director’s Order under appeal is not altered by a settlement agreement. As noted above, there are no added parties, participants or presenters in the proceeding.
17Based on the submissions of the parties, the Tribunal finds that Rule 199 applies and dismisses the appeal.
DECISION
18The appeal of Director’s Order No. 6465-AC9QXS-1 brought by Cox Farms Ltd. is dismissed.
Appeal Withdrawn
Appeal Dismissed
“Maureen Carter-Whitney”
MAUREEN CARTER-WHITNEY
VICE-CHAIR
“Marlene Cashin”
MARLENE CASHIN
MEMBER
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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