Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: June 04, 2019
CASE NOS.: 19-009, 19-026
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended and [s]ection 100 of the Ontario Water Resources Act, R.S.O. 1990, c. O.40, as amended
Appellant: Ontario Graphite Ltd.
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject of appeal: Environmental Penalty Order
Reference No.: 204
Property Address/Description: 2142 Forestry Tower Road
Municipality: Kearney
ERT Case No.: 19-009
ERT Case Name: Ontario Graphite Ltd. 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 and [s]ection 100 of the Ontario Water Resources Act, R.S.O. 1990, c. O.40, as amended
Appellant: Tom Burkett (File No. 19-026)
Appellant: Ellerton Castor (File No. 19-027)
Appellant: Derek Hirsch (File No. 19-028)
Appellant: Ontario Graphite Ltd. (File No. 19-029)
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject of appeal: Order to perform work to support the future operation of the onsite Sewage Works
Reference No.: 8555-A6ESGE
Property Address/Description: 2142 Forestry Tower Road
Municipality: Kearney
ERT Case No.: 19-026
ERT Case Name: Burkett v. Ontario (Environment, Conservation and Parks)
Heard: May 24, 2019 in Kearney, Ontario
APPEARANCES:
Parties
Counsel/Representative+
Ontario Graphite Ltd., Derek Hirsch, Ellerton Castor and Tom Burkett
John Tidball
Director, Ministry of the Environment, Conservation and Parks
Sylvia Davis
Algonquin Eco Watch
Mike Wilton+
Participants
Magnetawan First Nation
Chief William Diabo+
POWR-MAG (Protectors of Wetlands and River Magnetawan) Inc.
Doris Kelly-Capyk+
Kearney Watershed Environmental Foundation
Carol Adamthwaite+
ORDER DELIVERED BY JUSTIN DUNCAN
Background
1This Order follows a Pre-hearing Conference (“PHC”) held to consider two related appeals.
2First, on February 22, 2019, Frank Miklas, Director, Ministry of the Environment, Conservation and Parks (“MECP”), issued Environmental Penalty Order No. 204 (“Environmental Penalty Order”) to Ontario Graphite Ltd. in relation to water quality at the Kearney Graphite Mine Site located at 2142 Forestry Tower Road, Kearney (“Subject Site”). The Environmental Penalty Order cites 10 contraventions and assesses a total penalty in the amount of $130,000.
3Ontario Graphite Ltd. filed an appeal of the Environmental Penalty Order with the Environmental Review Tribunal (“Tribunal”) on March 7, 2019.
4Second, on April 12, 2019 Carroll Leith, Director, MECP issued Director’s Order Amendment No. 3 (“Order Amendment No. 3”) to Ontario Graphite Ltd., Derek Hirsch, Ellerton Castor and Tom Burkett (collectively the “Appellants”). Order Amendment No. 3 amends an Environmental Compliance Approval for industrial sewage works on the Subject Site that had previously been amended on October 26, 2018.
5An appeal from the issuance of Order Amendment No. 3 was filed with the Tribunal on April 26, 2019.
6A PHC was held by the Tribunal on May 24, 2019 in Kearney, Ontario for both appeals.
Status Requests
7During the PHC and on consent of the parties, the Tribunal added Algonquin Eco Watch as a party to the appeals in accordance with Rule 63 of the Rules of Practice of the Tribunal (“Tribunal Rules”). Algonquin Eco Watch has been involved with the Kearney Graphite Mine in some form since approximately 1998 and has an interest in the water quality of the area and trout in the lakes potentially impacted by the mine.
8During the PHC and on consent of the parties, the Tribunal also added the Magnetawan First Nation, POWR-MAG (Protectors of Wetlands and River Magnetawan) Inc. (“POWR-MAG”), and the Kearney Watershed Environmental Foundation (“Foundation”) as participants to the appeals in accordance with Rule 66 of the Tribunal’s Rules. Magnetawan First Nation explained that its interest in the appeals stems from the fact that the mine is located within its traditional territory and treaty territory and that they have concerns about water contamination impacts on the environment, animals and people’s health as their drinking water is taken from the Magnetawan River near Georgian Bay. POWR-MAG explained that it has been involved with the mine since 2013 and that it has been conducting water sampling in the area as a result of concerns about pH and mineral contamination. Finally, the Foundation explained that it is also concerned about the impact of the mine on the headwaters of the Magnetawan River and the potential downstream impacts.
Consolidation of the Appeals
9Having addressed the requests for status, the Tribunal next heard submissions about whether the two appeals should be consolidated under Rule 173 of the Tribunal’s Rules.
10The parties were in agreement that the two appeals stem from the same set of facts, namely issues arising from elevated pH caused by acid mine drainage on the Subject Site. There was agreement that the evidence would be similar on both appeals and would be provided by the same witnesses. It was agreed that it would be most efficient to hear the two appeals together. On the basis of this agreement and having considered the submissions of the parties, the Tribunal consolidated the appeals under Rule 173(a) of the Rules.
Scheduling of Next Steps
11Finally, the MECP and the Appellants explained that they have begun discussions with a view to settling some or all of their issues and the proposal was to adjourn for approximately one month to allow the parties to engage in further discussions. The Appellants also explained that they were complying with terms contained in the Order Amendment No. 3 and that additional compliance dates will not arise until later in 2019. Algonquin Eco Watch was in agreement with the proposal to adjourn for a month.
12Having considered the parties’ submissions, the Tribunal scheduled a second PHC to take place on Friday, June 28, 2019 at 10 a.m. by way of telephone conference call using 416-212-8014 or 1-866-500-5845 and code 1219634#.
ORDER
13The Tribunal orders that:
a. Tribunal Cases 19-009 and 19-026 are consolidated.
b. Algonquin Eco Watch is granted party status on the appeals.
c. Magnetawan First Nation, POWR-MAG (Protectors of Wetlands and River Magnetawan) Inc. and Kearney Watershed Environmental Foundation are granted participant status on the appeals.
d. A second PHC will occur on Friday, June 28, 2018 at 10 a.m.
Cases 19-009 and 19-026 Consolidated
Requests for Party and Participant Status Granted
Second Pre-Hearing Conference Scheduled
“Justin Duncan”
JUSTIN DUNCAN
VICE-CHAIR
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Environmental Review Tribunal
A constituent tribunal of Tribunals Ontario - Environment and Land Division
Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248