Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: December 30, 2019
CASE NO(S).: 17-010, 17-011, 17-054
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellant: Lafarge Canada Limited
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject of appeal: Environmental Penalty Order for failure to: 1) submit quarterly reports; 2) calculate suspended solids in process effluent; and 3) make complete reports available for public viewing
Reference No.: 166
Property Address/Description: 683917 Road 68, Rural Route 2
Municipality: Town of Ingersoll
Upper Tier: County of Oxford
ERT Case No.: 17-010
ERT Case Name: Lafarge Canada Limited v. Ontario (Environment, Conservation and Parks)
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellant: Lafarge Canada Limited
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject of appeal: Environmental Penalty Order for exceeding the allowable sample and monthly average limit of total suspended solids (TSS) in process effluent and for failing to report the TSS exceedances
Reference No.: 168
Property Address/Description: 683917 Road 68, Rural Route 2
Municipality: Town of Ingersoll
Upper Tier: County of Oxford
ERT Case No.: 17-011
ERT Case Name: Lafarge Canada Limited v. Ontario (Environment, Conservation and Parks)
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellant: Lafarge Canada Limited
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject of appeal: Environmental Penalty Order for exceeding the allowable monthly average limit of total suspended solids and contravening the required level of pH in process effluent
Reference No.: 172
Property Address/Description: 683917 Road 68, Rural Route 2
Municipality: Town of Ingersoll
Upper Tier: County of Oxford
ERT Case No.: 17-054
ERT Case Name: Lafarge Canada Limited v. Ontario (Environment, Conservation and Parks)
Heard: December 11, 2019 in Ingersoll, Ontario
APPEARANCES:
Parties Counsel/Representative+
Lafarge Canada Limited Lana Finney
Director, Ministry of the Environment, Conservation and Parks Jon Bradbury
Presenter Oxford Environmental Action Committee Suzanne Crellin+
DECISION DELIVERED BY HELEN JACKSON
REASONS
Background
1Lafarge Canada Limited (“Lafarge”) owns and operates a quarry and cement terminal at the address noted above. This facility is listed in Schedule 1 to Ontario Regulation 561/94: Effluent Monitoring and Effluent Limits – Industrial Minerals Sector (“MISA Regulation”). The facility is also listed in Table 1 to Ontario Regulation 222/07: Environmental Penalties (“EP Regulation”). These two regulations are made under the Environmental Protection Act (“EPA”).
2Lee Orphan, Director, Ministry of the Environment and Climate Change, now the Ministry of the Environment, Conservation and Parks (“MECP”) issued to Lafarge two Environmental Penalty (“EP”) Orders, No. 166 and 168, both dated February 28, 2017 and served on Lafarge on March 2, 2017. A third EP Order was issued to Lafarge on July 12, 2017.
3A Notice of Appeal relating to the first two EP Orders was filed by Lafarge with the Environmental Review Tribunal (“Tribunal”) on March 16, 2017 and a Pre-hearing Conference (“PHC”) was held in Woodstock on July 12, 2017. At the PHC, the Tribunal combined the proceedings relating to the two appeals under Rule 173 of the Tribunal’s Rules of Practice (“Tribunal Rules”). Presenter status was granted to the Oxford Environmental Action Committee (“OEAC”) at this PHC. The third EP Order was also appealed to the Tribunal and was combined into the existing proceeding at a telephone conference call (“TCC”) held on September 6, 2017.
4The EP Orders arose as a result of inspections conducted by the MECP at the facility on and after October 21, 2016. The EP Orders allege exceedances of certain contaminants in wastewater and non-compliance with reporting requirements over a period of several years.
5Subsequent to the filing of the appeals, the parties engaged in settlement discussions. TCCs were held to advise the Tribunal of the status of the settlement discussions. At the TCC on September 6, 2019, the parties advised that they had reached a settlement in this matter and requested the Tribunal schedule a settlement hearing. The presenter, OEAC, requested that the hearing be in person at a local venue so that the OEAC and its representatives could attend and provide an oral presentation.
6At the end of the settlement hearing on December 11, 2019, the Tribunal made an oral ruling accepting the settlement agreement. This Decision confirms that ruling and provides reasons for it.
Issue
7The issue is whether the settlement agreement is consistent with the purpose and provisions of the EPA and whether it is in the public interest.
Discussion, Analysis and Findings
8Prior to the settlement hearing, the parties jointly provided a document outlining the proposed settlement of these appeals, including agreed facts, proposed terms of settlement, and submissions in support of the terms of settlement. This was entered into evidence as Exhibit 1 at the hearing. Background documentation was provided in Exhibit 2, and the presentation by OEAC was provided in Exhibit 3.
9As explained at the hearing by counsel for the Director, Jon Bradbury, and provided in the documentation, following further review of the information available to him, the Director agrees that “at the material times, discharges from MISA monitoring point 0100 did not fall within the definition of “Process Effluent” at section 1 of the MISA Regulation, and therefore Lafarge did not contravene sections 15(1), 18(1) or 18(2) of the MISA Regulation as alleged at Contravention #6 of EP Order 166; Contraventions #1 and #2 of EP Order 168; and Contravention #9 of EP Order 172.” Mr. Bradbury explained that the plant was not operating equipment at the time the samples were taken, and as such, the discharge water did not fit the definition of process effluent.
10The terms of settlement specify that the Appellant will withdraw the appeals; and, the Appellant and Director jointly request the Tribunal issue an Order with the following two parts:
- Direction that the Director amend the EP Orders as follows:
a) EP Order 166 shall be amended to remove Contravention #6 and the associated Penalty Amount of $15,120.00;
b) EP Order 168 shall be amended to remove Contraventions #1 and #2 and the associated Penalty Amounts totalling $1,895.40; and
c) EP Order 172 shall be amended to remove Contravention #9 and the associated Penalty Amount of $2,784.60.
- Dismissal of the proceeding pursuant to Rule 201 of the Tribunal’s Rules.
11As part of the settlement, the Director commits that it will serve the amended EP Orders on Lafarge within 30 days of the issuance of the Tribunal’s Order dismissing the proceeding pursuant to Rule 201 of the Tribunal’s Rules. Lafarge commits that it will pay the Penalty Amounts associated with the remaining Contraventions as detailed in the amended EP Orders, which total $80,151.40, within 60 days after being served with the amended EP Orders.
12In the Director’s submissions to the Tribunal, the Director notes that under the terms of the settlement, Lafarge will pay the fines attributed to contraventions at MISA monitoring point 0200 in relation to discharge from the quarry pit. The Director submits that this is consistent with the purposes of the EPA and the MISA Regulations made thereunder, and the public interest is met by the payment of the fines.
13In accordance with Rule 201 of the Tribunal’s Rules, the parties submit that the settlement fulfills the purpose of the EPA and is in the public interest. They requested that the Tribunal accept the withdrawal of the appeal by the Appellant and dismiss the proceeding under Rule 201.
14The purpose of the EPA is set out in section 3 of the EPA and provides:
3 (1) The purpose of this Act is to provide for the protection and conservation of the natural environment.
15Rule 201 is applicable where a settlement alters the decision under appeal. It provides that:
- 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.
16At the settlement hearing, the OEAC indicated that they did not object to the settlement agreement and view the penalties as an important deterrent to future non-compliance.
DECISION
17After hearing from the parties and the presenter, the Tribunal issued an oral decision. The Tribunal considered the interests of the OEAC, the settlement agreement reached by the parties, and evidence and submissions of the parties. In accordance with Rule 201, the Tribunal found that the settlement agreement is consistent with the purpose and provisions of the EPA and the regulations made thereunder and is in the public interest. On that basis, the Tribunal indicated it would issue an Order to amend the EP Orders and would dismiss this proceeding pursuant to Rule 201 of the Tribunal’s Rules.
18The Tribunal directs the Director to amend the EP Orders as follows:
EP Order 166 shall be amended to remove Contravention #6 and the associated Penalty Amount of $15,120.00;
EP Order 168 shall be amended to remove Contraventions #1 and #2 and the associated Penalty Amounts totalling $1,895.40; and
EP Order 172 shall be amended to remove Contravention #9 and the associated Penalty Amount of $2,784.60.
19The Tribunal accepts the withdrawal of the appeals and orders that the proceeding is dismissed pursuant to Rule 201 of the Tribunal’s Rules of Practice.
Appeals Withdrawn
Proceeding Dismissed
Director’s Order Amended
“Helen Jackson”
HELEN JACKSON
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