Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: June 26, 2019
CASE NO.: 18-032
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellant: Bryan Kieswetter (File No. 18-032)
Appellant: Robert Kieswetter (File No. 18-033)
Appellant: Paxton Equipment Ltd. (File No. 18-034)
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject of appeal: Order to perform work and provide financial assurance in regards to the foundry sand waste pile, located on site
Reference No.: 2083-AP2MXM
Property Address/Description: 2583 Sandhills Road
Municipality: Township of Wilmot
ERT Case No.: 18-032
ERT Case Name: Kieswetter v. Ontario (Environment, Conservation and Parks)
Heard: November 21, 2018, January 15, March 28, May 3 and 15, and June 6, 2019 by telephone conference calls
APPEARANCES:
Parties
Bryan Kieswetter, Robert Kieswetter and Paxton Equipment Ltd.
Counsel
John Tidball
Parties
Director, Ministry of the Environment, Conservation and Parks
Counsel
Sylvia Davis and Jon Bradbury
DECISION DELIVERED BY JUSTIN DUNCAN AND HELEN JACKSON
REASONS
Background
1On June 18, 2018, Amy Shaw, Director, Ministry of the Environment, Conservation and Parks (“Ministry”), issued Director’s Order No. 2083-AP2MXM (“Director’s Order”) to Bryan Kieswetter, Robert Kieswetter and Paxton Equipment Ltd. (“Appellants”) relating to the management of a foundry sand waste pile associated with a foundry operation located at 2583 Sandhills Road in the Township of Wilmot (“Subject Property”).
2The Appellants filed an appeal of the Director’s Order with the Environmental Review Tribunal (“Tribunal”) pursuant to s. 140 of the Environmental Protection Act (“EPA”) on June 26, 2018.
3A Pre-hearing Conference (“PHC”) was held on September 27, 2018 in Baden, Ontario. During this PHC and on consent of the parties, the Tribunal added John Good and David Eenkooren as presenters to the appeal (see: Kieswetter v Ontario (Environment, Conservation and Parks), 2018 99053). In summary, the presenters had variously expressed an interest during the PHC for more information and a concern about the potential for contamination of groundwater resulting from the presence of the foundry sand on the Subject Property.
4The PHC was continued by way of telephone conference call (“TCC”) on November 21, 2018, January 15, March 28, May 3 and 15, 2019. During these TCCs, the parties provided updates on the progress of their negotiations with a view towards a settlement of the appeal. The presenters did not appear during any of these TCCs.
5A settlement hearing was held by way of TCC on June 6, 2019 prior to which the parties had filed an executed settlement agreement and supporting evidence in writing. At the end of the settlement hearing, the Tribunal made an oral ruling accepting the settlement agreement. This Decision confirms that ruling and provides reasons for it.
Issue
6The 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
7The Director explained during the settlement hearing that the original concern of the Ministry that lead to the issuance of the Director’s Order was the determination that the foundry sand on the Subject Property contained various contaminants.
8The parties explained during the settlement hearing that the terms of their Minutes of Settlement specify that the Appellants will withdraw their appeal of the Director’s Order, that the Director will revoke the Director’s Order and that a new Director’s Order will issue to replace it. The new Director’s Order, filed with the Tribunal as part of the settlement hearing, amongst other items, includes the following:
a. A requirement that the foundry sand pile be covered and maintained.
b. Establishes a detailed operations plan that covers all aspects of how the foundry sand will be screened, transported and disposed of.
c. Precludes unprocessed foundry sand from leaving the site unless approved by the Director.
d. Establishes a timing window during which screening may occur.
e. Sets out a list of Ministry-approved haulers that will be permitted to transport the processed sand.
f. Establishes a compliance date of November 1, 2019 for the removal of all foundry sand from the site.
9The result of the settlement will be that the new Director’s Order will ensure that the foundry sand pile will be removed entirely from the Subject Property by November 1, 2019. The original Director’s Order had required the Appellants to pursue approval to use the Subject Property as a waste site with a compliance date of approximately four years from the date of the Director’s Order.
10The parties submitted that the settlement represents an improvement upon the original Director’s Order in terms of management of the foundry sand and the date for compliance. In accordance with Rule 201 of the Tribunal’s Rules of Practice, the parties submitted 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 Appellants and dismiss the proceeding under Rule 201.
11The purpose of the EPA is set out in s. 3 of the Act and provides:
3 (1) The purpose of this Act is to provide for the protection and conservation of the natural environment.
12Rule 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.
13Although the presenters did not appear during the settlement hearing, the parties advised that the presenters had been served with the settlement materials and had not raised any objections to the settlement with them directly. Counsel for the Director advised that Mr. Good had communicated to her that he had no issues with the settlement.
14After hearing from the parties, the Tribunal issued an oral decision. The Tribunal considered the interests of the presenters which had been raised during the first PHC, considered the Minutes of Settlement reached by the parties, considered the draft new Director’s Order dated June 5, 2019 and considered the evidence and submissions of the parties. In accordance with Rule 201, the Tribunal found that the settlement agreement is consistent with the purpose of the EPA and is in the public interest. The Tribunal accepted the withdrawal of the appeal and dismissed the proceeding.
DECISION
15The Tribunal accepts the withdrawal of the appeal and orders that the proceeding is dismissed.
Appeal Withdrawn
Proceeding Dismissed
“Justin Duncan”
JUSTIN DUNCAN
VICE-CHAIR
“Helen Jackson”
HELEN JACKSON
MEMBER
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Environmental Review Tribunal A constituent tribunal of Tribunals Ontario – Environment and Lands Division Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248