David Elstone v. Director, Ministry of the Environment and Climate Change, 2018 CanLII 37721

Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: April 26, 2018

CASE NO.: 17-060

PROCEEDING COMMENCED UNDER section 139(1)(c) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended;

Appellant: David Elstone

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Refusal of an Environmental Compliance Approval application for a Hauled Sewage Disposal Site and to amend an existing Environmental Compliance Approval’s expiry date

Reference No.: SI HL AH 09 15 001

Property Address/Description: 10538 ON-118 Highway, Lot 26, Concession 3

Municipality: Township of Algonquin Highlands

Upper Tier: County of Haliburton

ERT Case No.: 17-060

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

Heard: April 13, 2018 in Algonquin Highlands, Ontario

APPEARANCES:

Parties

Counsel/Representative^+^

David Elstone

Kelly Gravelle

Director, Ministry of the Environment and Climate Change

Paul McCulloch

Township of Algonquin Highlands

John Ewart and Jessica Chapman (student-at-law)

Participants

Maple, Beech and Cameron Lakes Area Property Owners’ Association

Andy Muirhead^+^

Murray Adam

Self-represented

Bill Missen

Self-represented

DECISION DELIVERED BY JUSTIN DUNCAN AND HELEN JACKSON

REASONS

Background

1On September 21, 2017, the Director of the Ministry of the Environment and Climate Change (“MOECC”) refused a request by David Elstone (“Appellant”), owner of Haliburton Septic Pumping, to issue an environmental compliance approval (“ECA”) for a Hauled Sewage Disposal Site located at 10538 ON-118 Highway, Township of Algonquin Highlands, Lot 26, Concession 3, County of Haliburton (“Site”), pursuant to s. 20.3 of the Environmental Protection Act (“EPA”). As part of the decision, the Director amended an existing ECA #SI HL AH 09 15 001 (“original ECA”) to extend the expiry date from September 30, 2017 to November 30, 2017. The original ECA was granted in 2015. When the Appellant requested the original ECA be renewed, he also applied to expand the disposal area from 0.87 hectare (“ha”) to 1.61 ha.

2On October 4, 2017, the Appellant appealed the decision of the Director to the Environmental Review Tribunal (“Tribunal”), under s. 139(1)(c) of the EPA.

3On January 17, 2018, a Pre-hearing Conference (“PHC”) was held in Algonquin Highlands, Ontario. At that PHC, the Parties provided an overview of their positions on the appeal, Party status was granted to the Township of Algonquin Highlands (“Township”) and Participant status was granted to those noted above in the appearances section. At the PHC, the Parties indicated that they were amenable to Tribunal-assisted mediation on the appeal.

4The Tribunal issued an Order on February 8, 2018 that provided the overview and reasons for granting status in this matter; set the dates for disclosure and filing of witness statements necessary to proceed to a hearing; set a five-day hearing; directed the Parties to contact the Case Coordinator to set a mediation date; and scheduled a status update telephone conference call (“TCC”) for March 6, 2018.

5At the TCC held on March 6, 2018, the Tribunal was advised that the initial mediation was productive. A further TCC was scheduled for March 16, 2018, whereupon the Tribunal was advised that the Parties expected to reach a settlement agreeable to all the Parties. The Director undertook to arrange a meeting with the Participants to explain the settlement and to obtain comments prior to signing the settlement agreement. The Tribunal vacated four of the five hearing dates and retained the hearing date of April 13, 2018 in Algonquin Highlands to hear the proposed settlement in this matter. An Order arising from the two TCCs was issued April 4, 2018.

6The Parties submitted Minutes of Settlement (“MOS”) to the Tribunal which are attached to this decision as Appendix 1, on April 6, 2018. Schedule A of the MOS contains a draft Amended Environmental Compliance Approval (“draft Amended ECA”) that includes a number of conditions to the approval in addition to those in the original ECA, and a definitive expiry date of November 30, 2019. The MOS also include a commitment by the MOECC to undertake an Action Plan for additional environmental monitoring at the Site between May 1, 2018 and November 30, 2019. The Action Plan is appended to this decision as Appendix 2. The Appellant agrees that he will withdraw his appeal as a requirement of the MOS.

7At the hearing on April 13, 2018, the Tribunal heard the submissions of the Parties and the three Participants in relation to the settlement. The parties requested that the Tribunal find that the settlement is consistent with the purpose of the EPA and is in the public interest, and that the Tribunal order the Director to issue the draft Amended ECA substantially in the form proposed in the MOS and dismiss the proceeding. The three Participants are opposed to the settlement.

8The Tribunal has considered the documentation provided by the Parties and the submissions of the Parties and the Participants. Upon deliberation, the Tribunal finds that the settlement is consistent with the purpose of the EPA and is in the public interest, and orders the Director to issue the draft Amended ECA substantially in the form proposed in the MOS (attached to this decision as Schedule A to the MOS at Appendix 1), and dismisses the proceeding. Below are the reasons for the Tribunal’s decision.

Issue

9The issue is whether to accept the proposed MOS and dismiss the proceeding pursuant to Rule 201 of the Tribunal’s Rules of Practice (“Rules”).

Relevant Legislation and Rules

10Rule 201 of the Rules outlines the steps the Tribunal must take in reviewing a settlement agreement that alters the decision under appeal and deciding whether to dismiss an appeal:

201. 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.

11The purpose of the EPA is set out in s. 3 of the Act, which provides:

Purpose of Act

3 (1) The purpose of this Act is to provide for the protection and conservation of the natural environment.

12Section 27 (1) of the EPA sets out the requirement for an ECA for the Appellant’s operation:

Approval, waste management system or waste disposal site

27 (1) No person shall use, operate, establish, alter, enlarge or extend a waste management system or a waste disposal site except under and in accordance with an environmental compliance approval.

Discussion and Analysis

13Counsel for the Director, Paul McCulloch, advised the Tribunal that the Director refused to renew the original ECA on the basis of two principal concerns that arose through the technical review: i) the long-term cumulative surface water impact to Maple Lake, which is an at-capacity trout lake about 1 kilometre (“km”) away; and, ii) outstanding hydrogeological review recommendations.

14As a result of commitments made through the settlement agreement, Mr. McCulloch advised the Tribunal that the Director’s concerns regarding environmental impact from the operation at the Site are now satisfied. Specifically, the settlement agreement imposes more stringent environmental obligations on the Appellant by imposing additional conditions to the draft Amended ECA including a two-year time limit to the draft Amended ECA. Additionally, Mr. McCulloch advised that the MOECC has drafted an Action Plan of monitoring activities to be undertaken by the MOECC and it will consult with the Participants before finalizing the contents of the Action Plan.

15The additional conditions included in the draft Amended ECA are as follows:

• Condition 12 requires the approval holder to install additional vegetated berms in strategic locations to minimize surface water run-off;

• Condition 20 requires the approval holder to vegetate all areas of the buffer zone, and to ensure that they remain undisturbed by vehicle traffic;

• Condition 21 requires that the approval holder seed the berms within the surface water Buffer Zone to minimize erosion;

• Condition 22 requires the approval holder to retain a qualified person to delineate surface water features to ensure the 60 metre (“m”) buffer zone is maintained;

• Condition 23 requires the approval holder to ensure that sediment controls are in place along the Site access road;

• Condition 28 requires the approval holder to undertake static water level monitoring and field testing for additional parameters;

• Condition 29 requires that the approval holder test five additional parameters as part of the quarterly ground water monitoring samples, in addition to the six parameters required by the original ECA;

• Condition 29 also requires that the approval holder submit lab results directly to the MOECC within 14 days of receipt;

• Condition 30 establishes concentrations for health related parameters above which the approval holder must immediately notify the MOECC, and take any actions as directed by the MOECC;

• Condition 31 requires the submission of an annual groundwater monitoring report with at least twelve requirements; and

• Condition 32 requires the submission of a sampling protocol for review and acceptance by the MOECC.

16The draft Amended ECA also alters the spreading area to remove a portion of the spreading field closest to neighbouring residents and add an area in another field. There was concern by the Participants that the additional area of spreading would increase the spreading volume; however, Mr. McCulloch clarified that the increase in area should not result in such an increase because it is the size of truck capacity that is the limiting factor, and there is only one truck to be used in the Appellant’s operation.

17As mentioned above, in addition to the requirements imposed by the draft Amended ECA, the MOECC has developed an Action Plan which is appended to this decision as Appendix 2. In the Action Plan, which is not yet finalized, the MOECC has committed to at least the following:

• Install and maintain a meteorological monitoring station to record at a minimum wind direction;

• Conduct surface water monitoring of the tributary that flows through the Site and discharges to Maple Lake;

• Undertake a monitoring program of drinking water wells located down gradient of the Site along Highway 118;

• Assess the results of the groundwater monitoring program and determine if any groundwater monitoring is required after the closure of the Site on November 30, 2019;

• Undertake a minimum of two full proactive compliance inspections each spreading season of the Site to assess compliance with the conditions of the draft Amended ECA and with MOECC legislation;

• Continue to have MOECC staff respond to complaints on a priority basis; and

• Share all data collected and reports that are produced by the MOECC with all Parties and Participants, with the exception of monitoring results from private wells.

18The Appellant had originally proposed to use the Site on a long-term basis. However, as a result of the settlement, the Parties have agreed that the Site is to be used for a maximum of two additional years. The certainty that the Site will not be used for greater than two years addresses the Director’s concern regarding the potential for long-term cumulative impacts to Maple Lake resulting from the Appellant’s operation.

19Mr. McCulloch advised the Tribunal that during settlement discussions, the Appellant had commissioned and provided additional expert reports and information in relation to the hydrogeological issues raised by the MOECC staff. Mr. McCulloch advised that the Director is now satisfied that this information, in combination with the revised conditions that were added to the draft Amended ECA, resolve the Director’s concerns related to hydrogeology. Mr. McCulloch clarified that the setback to the nearest well is 270 m, which is much greater than the recommended minimum of 90 m. He also advised that the groundwater monitoring wells have not indicated any impact to date from the Appellant’s operation.

20Mr. McCulloch explained that, in its review of the Appellant’s application for an ECA, the MOECC had applied the “Lakeshore Capacity Assessment Handbook” and that this document was not applied in 2015 when the original ECA was granted. The Lakeshore Capacity Assessment Handbook is typically applied when assessing development on a lake that is determined to be “at capacity”. Mr. McCulloch advised that this is the first time that the document has been applied to a hauled sewage site and that the MOECC intends to apply this document to all hauled sewage sites in Haliburton in the future. Mr. McCulloch indicated that the proposed draft Amended ECA is the most stringent ECA for a hauled sewage site in Ontario.

21Mr. McCulloch explained that the MOECC is currently reviewing its policies with regard to the field spreading of hauled sewage but that no changes to existing policy have yet been made. He acknowledged that there is limited hauled sewage disposal capacity in the County of Haliburton (“County”), though it is not at a ‘crisis’ situation.

22Mr. McCulloch submitted that the conditions in the draft Amended ECA are protective of the environment and the operation provides a necessary service; therefore, issuing the draft Amended ECA is consistent with the purposes and provisions of the EPA. This satisfies s. 27 of the EPA and furthers the purpose of the EPA as outlined in s. 3(1). Mr. McCulloch indicated that the Director has considered the comments from the public from the Environmental Bill of Rights posting and the comments provided by the Participants, in coming to this conclusion.

23The Appellant endorsed the submissions of the Director and supported the settlement. Appellant’s counsel, Kelly Gravelle, submitted that the MOS and the draft Amended ECA represent an outcome that balances the provisions of the EPA and protection of the environment with the continued operation of the Appellant’s business.

24Ms. Gravelle indicated that the Appellant takes his obligations to manage the Site seriously and he is aware of the very stringent conditions attached to the draft Amended ECA. He will continue to retain his consultant GHD to undertake the monitoring program as required by the draft Amended ECA.

25On behalf of the Township, John Ewart brought the Tribunal’s attention to the unresolved issue of the gap between the requirements of the EPA applied by the Director in issuing an ECA and a municipality’s ability to control development within its boundaries. He indicated that, under these circumstances, the Township does not routinely have input and is not consulted in regards to whether an ECA should be granted.

26Nevertheless, Mr. Ewart submitted that the Township accepts the settlement on the basis that the conditions to the draft Amended ECA are very stringent and that the public interest is satisfied, and as such, the settlement complies with the EPA and Rule 201 of the Rules. He indicated that the Township does not have the resources to assess the technical aspects of the proposal and therefore relies on the MOECC in that regard. He indicated that the Township accepts the technical assessment that the Site is not suitable for the long-term usage and is supportive of the time expiry.

27The Parties are all in agreement that the appeal should be resolved in accordance with the attached MOS.

28After hearing submissions from the Parties, the Tribunal heard evidence from the Participants.

29Andy Muirhead spoke on behalf of the Maple, Beech and Cameron Lakes Area Property Owners’ Association (“MBC”). Mr. Muirhead filed a participant statement that he read into evidence. He indicated that the MBC is opposed to granting the draft Amended ECA, as it is their position that the operation should be discontinued.

30Mr. Muirhead spoke to the issue that the Township has raised, being the situation that the lands are zoned ‘agricultural’ and the Appellant has not, and is not required to, apply for a zoning by-law amendment. Mr. Muirhead contends that the MOECC should respect the Township’s authority in establishing the permitted land use through the official plan and zoning by-law process.

31Mr. Muirhead indicated that there was insufficient feedback to the public from the MOECC when complaints were made regarding the past two years of the operation. He expressed concern that “meaningful enforcement of regulations only occurs when a situation becomes critical and serious harm results. Enforcement needs to be pro-active and preventative, and should begin with proper consideration of site suitability.” In this regard, he referenced a previous operation in Dysart et al Township. Mr. Muirhead did not elaborate on the specifics of this matter but expressed the view that an improperly sited facility can lead to adverse environmental impact.

32Mr. Muirhead did express relief that through the Action Plan, the MOECC would take over sampling the tributary near the operation, as members of the MBC group have been doing that monitoring to date. However, he stated that the sampling of surface waters from the tributary should be undertaken more frequently than once per month, and sampling should be carried out following significant rain events. He also recommended that the meteorological station should be equipped with rainfall logging capability in addition to the proposed wind monitoring. He submitted that the Action Plan should also include provision for post closure mitigation by the operator under the direction of the MOECC.

33Murray Adam is a member of the “Our Grandchildren Matter Too....Save Maple Lake” group. He indicated that in July 2015, when the local residents first heard of the operation at the Site, a group of 40 or more people organized based on their concerns, in particular regarding impact to the many drinking water wells that are in the vicinity. He indicated that the group is larger now and though they remain concerned, they have been working closely with the Township and the MOECC.

34In his submissions, Mr. Adam expressed frustration that the Participants have not had the opportunity to provide their input to the mediation or to the Tribunal before a decision is made.

35Mr. Adam explained that one of the members of the group, who owns property near the Site, is having difficulty in obtaining a consent to sever her property because it is ‘within 500 m of a hauled sewage facility’, namely the Appellant’s operation. Mr. Adam stated that this speaks to the improper situation whereby the MOECC has the ability to grant an ECA for a waste disposal facility, yet the operator of the Site is not required to apply to the municipality for zoning by-law permission or other permission under the Planning Act.

36Bill Missen spoke of the ‘medieval practice’ of spreading untreated human waste on the land, especially in this case where the Site is within 1 km of a protected lake. He questioned why Ontario is the only province that continues this practice. He expressed great concern regarding the potential impact from air borne pathogens, the impact to wells, and resulting human health impacts.

37Mr. Missen indicated that he understood that the settlement would result in a very stringent ECA, but that given the concerns raised by the MOECC technical specialists in surface water and groundwater, he submitted that it would be more prudent for the Tribunal to refuse the draft Amended ECA. He states that this is not a “not-in-my-backyard” situation; rather, he is against the practice of spreading sewage on fields even though he recognizes that some locations are more suitable than others for this practice.

Findings

38The Tribunal has carefully considered the settlement materials filed by the Parties, the evidence tendered by the Participants and the various submissions provided by the Parties and Participants at the hearing and finds that the requirements of Rule 201 have been met.

39The Tribunal has heard that there is a legislative or policy gap between the EPA and the Planning Act insofar as an applicant for an ECA to operate a hauled sewage site is not currently required by the Director to also apply for land use permissions under the Planning Act. The Tribunal’s jurisdiction does not extend to assessing whether the Appellant should have applied for a zoning by-law amendment, and so the Tribunal cannot provide commentary on this concern of the Township and the Participants.

40The Tribunal has also heard that the Participants are strongly opposed to the principle of sewage spreading on fields entirely. The Director has indicated that the MOECC is in the midst of an ongoing review of this practice, albeit one that appears to have been underway for quite some time; however, at the moment the practice is relied upon by citizens in the County who have private septic systems to serve part of the sewage treatment needs of the County. The Tribunal heard that, although there is limited capacity for sewage treatment in the County, the situation is not a ‘crisis’, and that there are alternative sites where the Appellant could dispose of sewage waste. Nevertheless, the practice of sewage spreading on fields is currently in use and is necessary in the County due to limited capacity for other disposal options at this time. The Tribunal is required to assess this requested ECA on the basis of the provisions and purpose of the EPA, as it would for any requested ECA for hauled sewage spreading. The Tribunal’s role in this situation is not to determine the best site but to consider whether the settlement agreement is consistent with the purpose and provisions of the relevant legislation and whether the agreement is in the public interest.

41The Tribunal makes note of the fact that there was no evidence tendered at the hearing that any of the monitoring conducted as required by the terms of the original ECA or the sampling conducted by the Participants has identified any surface or groundwater contamination arising from the Appellant’s operation.

42The Tribunal is satisfied that the draft Amended ECA will provide for conditions of operation at the Site that fully consider the potential for future impacts in a manner that is protective of the environment. The stringent draft Amended ECA with numerous additional conditions will, among other things, ensure that spreading will not occur on the Site any closer than 270 m from the closest drinking water well, affording greater protection for drinking water than the minimum of 90 m, that berms and setbacks from surface water features will be established, ensuring greater protection for such features, and that the potential for off-site impacts will be controlled and monitored.

43The presence of additional sentinel groundwater monitoring wells as part of the draft Amended ECA will act as an early warning system to ensure that, should groundwater impacts occur, they would be identified so that appropriate mitigation can take place.

44The clear limit on the operation of the Site for a maximum of two years addresses the concern of the Director, the Township and the Participants that the long-term use of the Site for hauled sewage disposal could result in impacts to Maple Lake, its tributary and groundwater.

45Also, the Tribunal finds further confidence in the proposed additional surface water and off-site drinking water sampling to be conducted by the MOECC as part of the Action Plan. The Action Plan will monitor for surface water and drinking water impacts and will provide for a mechanism to respond should impacts be discovered.

46The Tribunal finds that the draft Amended ECA will provide for an operation that is consistent with the purpose and provisions of the EPA to protect and conserve the natural environment. Furthermore, the Tribunal finds that the agreement reached by the Parties is in the public interest by imposing stringent conditions on the Appellant’s operations, including the expiry of the draft Amended ECA on November 30, 2019, and by providing sewage disposal capacity in the County.

47In conclusion, based on its review of the documents provided by the Parties and Participants, the evidence provided by the Participants and the written and oral submissions provided by the Parties and Participants, the Tribunal finds that the MOS meet the requirements of Rule 201 and that, as a result, the proceeding should be dismissed.

48By way of recommendation, the Tribunal encourages the MOECC to finalize its review of the regulatory and policy framework applicable to hauled sewage spreading in the Province in order to provide the public with some certainty about the applicable framework that will be applied by the MOECC in the future to assess such applications.

DECISION

49The Tribunal directs the Director to issue the Amended ECA, in the form of Schedule A to the MOS, which is attached as Appendix 1 to this decision, subject to any necessary formatting or grammatical issues that may be identified prior to issuance.

50The Tribunal dismisses the appeal.

Director Directed to Issue Amended ECA

Appeal Withdrawn

Appeal Dismissed

“Justin Duncan”

JUSTIN DUNCAN

VICE-CHAIR

“Helen Jackson”

HELEN JACKSON

MEMBER

Appendix 1 – Minutes of Settlement

Appendix 2 – MOECC Action Plan

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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