ISSUE DATE: September 05, 2024
CASE NO(S).: OLT-24-000512
PROCEEDING COMMENCED UNDER subsection 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E. 19, as amended
Appellant: INEOS Styrolution Canada Ltd.
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject of Appeal: Order to perform work to prevent, reduce and eliminate the discharge of benzene
Reference No.: Director’s Order No. 1-358096039-1
Property Address: 872 Tashmoo Avenue
Municipality/Upper Tier: Sarnia/Lambton
OLT Case No.: OLT-24-000512
OLT Lead Case No.: OLT-24-000512
OLT Case Name: INEOS Styrolution Canada Ltd. v. Ontario (Environment, Conservation and Parks)
PROCEEDING COMMENCED UNDER subsection 139(2)(d) of the Environmental Protection Act, R.S.O. 1990, c. E. 19, as amended
Appellant: INEOS Styrolution Canada Ltd.
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject of Appeal: Alteration of terms and conditions imposed on an Environmental Compliance Approval for a hydrocarbon storage facility and a styrene and ethylbenzene production and hydrocarbon storage facility
Reference No.: ECA No. 8903-AD5HPV
Property Address/Description: 1265 Vidal Street South, 872 Tashmoo Avenue
Municipality/Upper Tier: Sarnia/Lambton
OLT Case No.: OLT-24-000516
OLT Lead Case No.: OLT-24-000512
PROCEEDING COMMENCED UNDER section 139(1)(e) of the Environmental Protection Act, R.S.O. 1990, c. E. 19, as amended
Appellant: INEOS Styrolution Canada Ltd.
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject of Appeal: Suspension of an Environmental Compliance Approval relating to the operation of a hydrocarbon storage facility and a styrene and ethylbenzene production and hydrocarbon storage facility
Reference No.: ECA No. 8903-AD5HPV
Property Address/Description: 1265 Vidal Street South, 872 Tashmoo Avenue
Municipality/Upper Tier: Sarnia/Lambton
OLT Case No.: OLT-24-000515
OLT Lead Case No.: OLT-24-000512
Heard: July 12, 2024 by video conference call and August 27, 2024 by telephone conference call
Parties and Counsel/Representative*
INEOS Styrolution Canada Ltd. Rick F. Coburn Gabrielle K. Kramer (on July 12, 2024 only) Franz Lopez
Ministry of the Environment, Conservation and Parks Nadine Harris Sarah Kromkamp Hannah West (articling student) (on August 27, 2024 only)
Aamjiwnaang First Nations Scott Robertson Jim Ratis
Crystal George and Annette George Ramani Nadarajah Jaqueline Wilson (on July 12, 2024 only)
Gary McNickle self-represented* (on July 12, 2024 only)
MEMORANDUM OF ORAL DECISION DELIVERED BY HUGH S. WILKINS ON july 12, 2024 and august 27, 2024 AND ORDER OF THE TRIBUNAL
1On July 12, 2024, the Tribunal held a Case Management Conference (“CMC”) regarding appeals brought by INEOS Styrolution Canada Ltd. (“Appellant”) pursuant to s. 140(1), s. 139(2)(d), and s. 139(1)(e) of the Environmental Protection Act arising from the issuance of Director’s Order No. 1-358096039-1, Amended Environmental Compliance Approval No. 8903-AD5HPV, and a Notice of Suspension of the Amended ECA, each dated May 1, 2024. The proceedings relate to the operation of the Appellant’s facilities located at 872 Tashmoo Avenue (“Site”), in the City of Sarnia.
STATUS REQUESTS
2At the CMC, the Tribunal considered requests for Party status from Annette and Crystal George, and from Gary McNickle. Each of them is a member of the Aamjiwnaang First Nation (“Aamjiwnaang”), which is located adjacent to the Site. Aamjiwnaang was added as a Party in these proceedings at a scheduling telephone conference call held on May 31, 2024.
3Annette George and Crystal George submit that they will be directly and substantially impacted by the proceedings and the decision of the Tribunal. They submit that if they were granted Party status, they would produce evidence on the impacts of emissions and contamination from the Site and assist the Tribunal by ensuring that the concerns of individuals in the community are brought forward. They submit that they have direct knowledge of the issues and would provide their stories and insights, along with opinion evidence, which would assist the Tribunal in understanding and adjudicating the issues. They submit that they would coordinate their evidence with the other Parties, their evidence would not be duplicative, and they would not raise new issues.
4Gary McNickle lives in Aamjiwnaang. He stated that he has experienced adverse health impacts caused by emissions from the Site. He submits that he is active in the local community and is concerned about the health and well-being of its members and, in particular, the impacts of benzene contamination on them. He submits that, based on his experience and proximity to the Site, he would assist the Tribunal in understanding and adjudicating the issues.
5Neither Aamjiwnaang nor the Director were opposed to the requests for Party status. Aamjiwnaang stated that it would work with Annette and Crystal George to coordinate their cases and avoid the duplication of evidence.
6The Appellant opposed the requests for Party status. It argues that the evidence of the proposed Added Parties would be duplicative with that of Aamjiwnaang. It submits that Aamjiwnaang will fully and completely represent their interests. It submits that they would not provide a different perspective and will not be significantly impacted by the Tribunal’s decision. It submits that their engagement as Participants would be more appropriate. It submits that there is urgency in having the hearing held as soon as possible and the involvement of the proposed Added Parties would prolong and complicate the proceedings.
7Rule 8.3 of the Tribunal’s Rules of Practice and Procedure states that the Tribunal may add a party to a proceeding when that person satisfies any applicable legislative tests necessary to be a party and their presence is necessary to enable the Tribunal to adjudicate effectively and completely on the issues in the proceeding.
8In the present case, the applicable legislative test is found in s. 145(1) of the Environmental Protection Act, which provides the Tribunal with wide discretion regarding the adding of Parties in proceedings under Part XIII of the Act. Regarding whether the presence of Annette and Crystal George, and of Gary McNickle is necessary to enable the Tribunal to adjudicate effectively and completely on the issues in the proceeding, the Tribunal finds that they each have a genuine interest in the proceedings, will be directly impacted by the Tribunal’s decision, and have an individual perspective that will assist the Tribunal in making its decision. Each of these persons is a member of the Aamjiwnaang community and is impacted by emissions from the Site. Annette George and Gary McNickle submit that they each have suffered health impacts from the emissions. The Tribunal finds that their experiences and individual perspectives are distinct from those of Aamjiwnaang and will assist the Tribunal in adjudicating the appeals. It finds that their engagement as Parties is necessary to ensure that the Tribunal is able to adjudicate effectively and completely on the issues. The Tribunal notes that these persons have agreed to work together to coordinate their appeals and avoid the duplication of evidence. They have also recognised the importance of having the appeals heard on a timely basis.
9On these bases, the Tribunal granted Party status to Annette George, Crystal George, and Gary McNickle.
AMENDMENT OF THE GROUNDS FOR THE APPEALS
10The Appellant stated that since the time of its filing of the appeal letter, Environment Canada has issued an Interim Order under the Canadian Environmental Protection Act imposing requirements on the Site and also the MECP has filed Ontario Regulation No. 206/24 regulating benzene emissions specifically at the Site. The Appellant submits that the new federal Interim Order and the filing of Regulation No. 206/24 require new standards and other requirements and impact the grounds for the appeals and the issues to be raised. It requests that it be given time to make proposed amendments to its appeal letter so that it addresses the new circumstances. The Appellant would consult with the other Parties and then seek leave from the Tribunal under s. 142(2) of the Environmental Protection Act to amend its grounds.
11None of the Parties opposed this course of action. The Tribunal directed the Appellant to prepare amendments to its grounds for the appeals, consult with the other Parties, and, if possible, send the proposed amendments, on consent to the Tribunal’s Case Coordinator.
12Subsequent to the CMC, the Tribunal received a proposed revised appeal letter from the Appellant containing revisions to its grounds for the appeals. The Director raised a concern regarding references to the Federal Order in the grounds. On August 27, 2024, the Parties participated in a telephone conference call at which agreement on revisions to the language used in the grounds was reached.
13Given the recent issuance of the Federal Order imposing requirements on the Site and the filing by MECP of Ontario Regulation No. 206/24 regulating benzene emissions at the Site, the Tribunal is of the opinion that it is proper in the present circumstances to grant leave under s. 142(2) of the Environmental Protection Act to amend the Appellant’s grounds for the appeals as proposed. The Tribunal has reviewed the proposed amended grounds for the appeals and approves them in the form attached to this Order and Decision as Attachment 1.
IDENTIFICATION OF ISSUES AND SCHEDULING
14At the CMC, Mr. McNickle, on consent, requested that a portion of the hearing be held in-person at a location in the vicinity of the Site. The Parties described the number and types of witnesses that they each intend to call at the hearing and agreed that 12 days would be required. The Tribunal scheduled hearing dates for October 2024. Subsequent to the CMC, the Parties filed a draft Procedural Order and Issues List.
15On August 29, 2024, the Appellant informed the Tribunal that the Parties, on consent, had agreed on a pathway forward, which averted the need for the scheduled hearing. They requested on consent that the scheduled hearing dates be cancelled and the draft Procedural Order be held in abeyance. They requested that the requirements agreed to by the Parties in the draft Procedural Order would be suspended and asked that a further CMC be scheduled for Monday, October 16, 2024 at which updates on progress would be provided to the Tribunal.
16The Tribunal agrees with this course of action.
17The Tribunal directs that a further CMC will be held on Monday, October 16, 2024 commencing at 10 a.m. by video.
18Parties and observers are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections.
https://global.gotomeeting.com/join/638422541
Access code: 638-422-541
19Parties and observers are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html.
20Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: (Toll-Free) 1-888-299-1889 or +1 (647) 497-9373. The access code is as indicated above.
21Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the CMC by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
ORDER
22THE TRIBUNAL ORDERS THAT Annette George, Crystal George, and Gary McNickle are Parties in all three proceedings.
23THE TRIBUNAL ORDERS THAT the Appellant’s appeal letter and grounds for appeal are amended in the form attached to this Order and Decision as Attachment 1.
24The case management directives set out above are so ordered.
25This Member is not seized.
“Hugh S. Wilkins”
HUGH S. WILKINS
VICE-CHAIR
Ontario Land Tribunal
Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.
ATTACHMENT 1