Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: May 17, 2021
CASE NOS.: 19-076
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19
Appellant: NexCycle Industries Ltd. (File No. 19-076)
Appellant: NexCycle Properties Ltd. (File No. 19-077)
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject of appeal: Order to conduct certain work including submitting a waste Environmental Compliance Approval and a financial assurance estimate to ensure that appropriate measures are taken to prevent adverse effects
Reference No.: 3858-BCFPDZ
Property Address/Description: PT Lot 4, Plan 677; PT Lot 26, Concession 7
Municipality: Township of Puslinch
Upper Tier: Wellington County
ERT Case No.: 19-076
ERT Case Name: NexCycle Industries Ltd. v. Ontario (Environment, Conservation and Parks)
APPEARANCES:
Parties
NexCycle Industries Ltd. and NexCycle Properties Ltd.
Counsel
Bryan Buttigieg
Parties
Director, Ministry of the Environment, Conservation and Parks
Counsel
Nadine Harris
HEARD: In writing
ADJUDICATOR(S): Helen Jackson, Member
DECISION
Background
1On October 7, 2019, Amy Shaw, Director, Ministry of the Environment, Conservation and Parks (“MECP”), issued Director’s Order No. 3858-BCFPDZ (“Director’s Order”), amended on October 11, 2019, to NexCycle Industries Ltd. and NexCycle Properties Ltd. (the “Appellants” or “NexCycle”). The Director’s Order relates to a property located at 50 McLean Road in the Township of Puslinch as described in the header above (the “Site”). NexCycle operate a glass recycling facility at the Site.
2Items 1 to 4 of the Director’s Order require the Appellants to take all necessary steps to retain a qualified consultant(s) satisfactory to the Director and have the consultant complete and submit an application for an Environmental Compliance Approval (“ECA”) for a waste disposal site (transfer and processing) as required by Part V of the Environmental Protection Act ("EPA”). Items 5 and 6 require an estimate of financial assurance for the potential clean-up of the Site. Items 7 to 15 relate to other reporting and maintenance requirements.
3On October 18, 2019, the Appellants filed a Notice of Appeal of the Director’s Order with the Environmental Review Tribunal (the “Tribunal”). The Appellants appealed the Director’s Order in its entirety, including all the work ordered.
4By letter of October 30, 2019, the Appellants sought a stay of items 1 to 6 in the Director’s Order that relate to the requirement for an ECA for a waste disposal site and a financial assurance estimate pending the disposition of this appeal. On January 27, 2020, the Tribunal granted a stay of items 1 to 6 of the Director’s Order pending the disposition of the appeal.
5A pre-hearing conference was held on January 29, 2020 at which time the parties indicated that the core issue in the appeal is the legal requirement for an ECA. The Tribunal directed that the appeal be undertaken in two phases, with the first phase being a hearing to determine whether an ECA for a waste disposal site is legally required. The second phase hearing on the remainder of the issues in dispute would proceed following the decision on the first phase.
6The parties provided an Agreed Statement of Facts on February 24, 2020, and written submissions were served upon the parties and Tribunal on March 13, 2020 for the first phase of the hearing. The Tribunal heard oral argument by telephone conference call (“TCC”) on March 23, 2020.
7By Order issued January 22, 2021, the Tribunal dismissed the appeal as it relates to items 1 to 4 of the Director’s Order. The Tribunal ordered the Appellants to undertake items 1 to 4 of the Director’s Order, and directed the parties to provide brief written submissions on proposed compliance dates for these items and for a procedure to address the remainder of the appeal. The stay of items 5 and 6 of the Director’s Order remained in place.
Remainder of the Appeal of the Director’s Order
8In email correspondence to the Tribunal dated February 5, 2021, the parties agreed to compliance dates for items 1 to 4. The agreed-upon compliance date for items 1 to 3 was March 5, 2021 and the agreed-upon compliance date for item 4 was June 30, 2021. Subsequently, the Appellants indicated to the Tribunal by email dated March 15, 2021 that they wish to withdraw the remainder of their appeal – specifically, regarding items 5 and 6 and the remaining items (items 7 to 15) in the Director’s Order.
9By email to the Tribunal dated March 25, 2021, the Director agreed to the withdrawal of the remainder of the appeal by NexCycle. The Director submits that the withdrawal of the Appellants’ appeal of items 5 and 6 and the remaining items in the Director’s Order, falls under Rule 199 of the Tribunal’s Rules of Practice (“Rules”), since the decision under appeal is not altered by a settlement agreement. The Director submits that the alteration of the compliance dates for items 1 to 6 is a consequence of the Tribunal’s January 27, 2020 Order staying these six items. As well, the Director submits that the Tribunal lifted the stay of items 1 to 4 as part of its decision to confirm these items on January 22, 2021, but did not set revised compliance dates in that Order. The Director submits that the Tribunal must lift the stay on items 5 and 6 of the Director’s Order.
10Rule 199 of the Rules sets out that if there is a withdrawal of an appeal agreed to by all parties and the instrument under appeal is not altered by a settlement agreement, then the Tribunal must dismiss the proceeding.
11Rule 199 states:
Where there has been a proposed withdrawal of an appeal agreed to by all Parties and the decision under appeal is not altered by a settlement agreement, a proposed withdrawal of an application, or a proposed revocation of an order made under section 74 of the Ontario Water Resources Act, the Tribunal shall issue a decision dismissing the proceeding
12The parties agree that the remainder of the Appellants’ appeal in the matter is being withdrawn, and the decision under appeal is not altered by way of settlement. On that basis, the parties agree that the Tribunal should issue a decision dismissing the proceedings for this matter pursuant to Rule 199.
13The Tribunal agrees with the submissions of the parties that the Appellants’ withdrawal of the appeal of items 5 and 6, and items 7 to 15, falls under Rule 199. The instrument (decision) under appeal is not being altered by a settlement agreement. The compliance dates for items 1 to 6 of the Director’s Order are altered as a consequence of the Tribunal’s direction, not through a settlement agreement. The previously ordered stay on items 5 and 6 of the Director’s Order is hereby lifted given the disposition of the appeal. The remainder of the items in the Director’s Order (items 7 to 15) were not stayed. The compliance dates for items 7 to 15 were not altered and remain in effect.
14The Tribunal orders the compliance dates for items 1 to 4 of the Director’s Order are as follows:
Items 1 to 3: March 5, 2021
Item 4: June 30, 2021
15The Tribunal orders that the stay is lifted for items 5 and 6 of the Director’s Order. The Tribunal further orders that the compliance date for items 5 and 6 of the Director’s Order is June 30, 2021.
16In accordance with Rule 199 of the Tribunal’s Rules, since the withdrawal of the appeal was agreed to by all parties and the decision under appeal is not altered by way of a settlement agreement, the matter is dismissed.
DECISION
17The Tribunal orders that the stay of items 5 and 6 of the Director’ Order is lifted.
18The Tribunal orders the following compliance dates:
Items 1 to 3: March 5, 2021
Items 4 to 6: June 30, 2021
19The Tribunal accepts the withdrawal of the remainder of the appeal by the Appellants and dismisses the proceeding. The compliance dates for items 7 to 15 were not altered and remain in effect.
Remaining Appeal Withdrawn
Remaining Appeal Dismissed
Partial Stay Lifted
“Helen Jackson”
HELEN JACKSON
MEMBER
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Environmental Review Tribunal
A constituent tribunal of Ontario Land Tribunals
Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248