Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE:
March 09, 2020
CASE NOS.:
17-032
18-039
PROCEEDING COMMENCED UNDER section 100.1(7) of the Environmental Protection Act, R.S.O. 1990, c. E.19
Appellant:
Nipissing-Parry Sound Catholic District School Board
Respondent:
Corporation of the Municipality of East Ferris
Subject of appeal:
Order to pay in relation to the clean-up of a spill
Property Address/Description:
1990 Corbeil Road
Municipality:
Municipality of East Ferris
Upper Tier:
Nipissing District
ERT Case No.:
17-032
ERT Case Name:
Nipissing-Parry Sound Catholic District School Board v. East Ferris (Municipality)
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19
Appellant:
Corporation of the Municipality of East Ferris (File No. 18-039)
Appellant:
Nipissing-Parry Sound Catholic District School Board (File No. 18-040)
Respondent:
Director, Ministry of the Environment, Conservation and Parks
Subject of appeal:
Order to perform work to clean up an oil spill
Reference No.:
0844-AWTHJ7
Property Address/Description:
1990 Corbeil Road
Municipality:
Municipality of East Ferris
ERT Case No.:
18-039
ERT Case Name:
East Ferris (Municipality) v. Ontario (Environment, Conservation and Parks)
APPEARANCES:
Parties
Counsel
Corporation of the Municipality of East Ferris
David N. Germain
Nipissing-Parry Sound Catholic District School Board
F.F. (Rick) Coburn
Director, Ministry of the Environment, Conservation and Parks
Sylvia Davis
HEARD:
March 2, 2020, by telephone conference call
ADJUDICATOR:
Helen Jackson, Member
DECISION
Background
1This matter relates to two appeals that were consolidated through a previous Order of the Environmental Review Tribunal (“Tribunal”).
2The first appeal, assigned Tribunal Case No. 17-032, was filed by the Nipissing-Parry Sound Catholic District School Board (“School Board”). The School Board appeals an April 2017 order (“Municipal Order”) issued by the Corporation of the Municipality of East Ferris (“East Ferris”) pursuant to s. 100.1 of the Environmental Protection Act (“EPA”). The Municipal Order directs the School Board to pay $622,983.83 to East Ferris for costs and expenses East Ferris incurred in relation to a spill of heating oil at the former St. Theresa School, 1990 Corbeil Road, East Ferris (“Site”). The Site was formerly owned by the School Board and is now owned by East Ferris.
3At the first Pre-hearing Conference (“PHC”) relating to the Municipal Order, held on August 21, 2017, the Tribunal agreed to divide the hearing of this appeal into two phases, with the first phase to consider the issue of responsibility for the spill and the second phase to consider the purpose and reasonableness of the costs and expenses incurred by East Ferris. The first phase of that appeal was heard on September 19, 2019. The Decision of the Tribunal has not yet been issued on the first phase of that appeal.
4The second appeal was filed by East Ferris and the School Board from Director’s Order No. 0844-AWTHJ7 (“Director’s Order”) and these appeals were assigned Tribunal Case Nos. 18-039 and 18-040. The Director’s Order was issued to East Ferris and the School Board by Carroll Leith, Director, Ministry of the Environment, Conservation and Parks (“MECP”) on July 13, 2018, pursuant to s. 17, 18 and 196 of the EPA. The Director’s Order relates to the same spill of heating oil at the former St. Theresa School and the migration of heating oil beyond the Site. The Director’s Order requires the completion of several work items related to: the continued operation of a trench/barrier system; development of a remediation action plan (“RAP”) for off-Site impacts; continued sampling and monitoring of groundwater, surface water and residences in the vicinity of the Site; and reporting of results and progress in remediation.
5The parties engaged in Tribunal assisted mediation in an effort to resolve and scope the issues in this second appeal. A PHC was held by telephone conference call (“TCC”) on November 14, 2019 where the parties indicated that full resolution of the issues had not been achieved. A further TCC was scheduled for December 9, 2019, at which time the parties indicated that only one issue remained, which they would continue to attempt to resolve. A one-day hearing was set for March 2, 2020 which was converted to a settlement hearing by TCC as the parties had resolved the remaining issue.
6Prior to the settlement hearing, the parties jointly submitted Minutes of Settlement (see Appendix 1 to this Decision), a RAP dated November 4, 2019, and Director’s Order Amendment No. 1 (see Appendix 2 to this Decision). At the TCC on March 2, 2020, the parties requested that the Tribunal accept the settlement pursuant to Rule 201 of the Tribunal’s Rules of Practice (the “Rules”), in that the proposed resolution is agreed by all the parties and alters the decision under appeal. 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
7The issue is whether the settlement agreement is consistent with the purpose and provisions of the EPA and is in the public interest.
Relevant Legislation and Rule
8EPA s. 3(1) sets out the purpose of the Act:
3 (1) The purpose of this Act is to provide for the protection and conservation of the natural environment.
9Rule 201 of the Tribunal’s Rules provides:
- 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.
Discussion, Analysis and Findings
10As submitted by the Director, Item 3 of the Director’s Order requires the Municipality and the School Board to submit a detailed RAP that identifies off-Site impacts resulting from the spilled fuel oil, measures that will be taken to remediate these impacts, and any additional action needed to prevent further off-Site migration of oil. The Director advised that since the start of these appeals there have been lengthy technical discussions between the parties that have led to a RAP, dated November 4, 2019, which fulfills the requirements of Director’s Order Item 3.
11The Director also advised that the parties have agreed to alter Item 4 of the Director’s Order which sets out the surface and groundwater sampling requirements. The Director advised that the sampling requirements are altered to more accurately reflect the surface water and groundwater monitoring well network locations and to adjust the frequency of monitoring to prioritize the more sensitive receptors.
12The Director advises that East Ferris and the School Board are currently in compliance with the Director’s Order, as suggested to be modified.
13In accordance with Rule 201 of the Tribunal’s Rules, the Director submits, and the parties agree, that the settlement fulfills the purpose of the EPA and is in the public interest. They requested that the Tribunal accept the settlement and dismiss the appeals pursuant to Rule 201.
14There are no participants or presenters in this proceeding.
15After having reviewed the settlement materials and hearing the submissions of the Director and the parties, the Tribunal issued an oral decision. The Tribunal considered the settlement agreement reached by the parties, and the evidence and submissions of the parties. In accordance with Rule 201, the Tribunal finds that the settlement agreement that includes the completion of the RAP as required by Item 3 and the alteration of Item 4 by Amendment of the Director’s Order is consistent with the purposes and provisions of the EPA and is in the public interest.
DECISION
16The Tribunal directs the Director to alter Item 4 of the Director’s Order No. 0844-AWTHJ7 in accordance with Appendix 2 to this Decision.
17The Tribunal orders that the proceeding is dismissed pursuant to Rule 201 of the Tribunal’s Rules.
Director’s Order Amended
Proceeding Dismissed
“Helen Jackson”
HELEN JACKSON
MEMBER
Appendix 1 – Minutes of Settlement
Appendix 2 – Director’s Order Amendment No. 1
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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