Environmental Review Tribunal Tribunal de l'environnement

Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE:
December 22, 2014
CASE NO.:
14-091
Wallace v. Director,
Ministry of the Environment
In the matter of an appeal by Karen Wallace filed October 23, 2014 for a Hearing before
the Environmental Review Tribunal pursuant to section 142.1 of the Environmental
Protection Act, R.S.O. 1990, c. E.19, as amended, with respect to an amendment
issued by the Director, Ministry of the Environment, on October 9, 2014 to Dufferin Wind
Power Inc. under section 47.5 of the Environmental Protection Act, regarding
Renewable Energy Approval Number 5460-98BPH8, this Approval being issued by the
Director, Ministry of the Environment, on June 10, 2013 to Dufferin Wind Power Inc.
regarding the construction, installation, operation, use and retiring of a Class 4 wind
facility with a total name plate capacity of 99.1 megawatts at a location described in the
Renewable Energy Approval as Dufferin Wind Power Project, Various Properties SWTS
as in MEL3218, Lot 270, Concession 1, in the Township of Melancthon, County of
Dufferin, Ontario a Class 4 wind facility; and
In the matter of two motions.
Heard:
In writing
APPEARANCES:
Parties
Counsel
Karen Wallace
Self-represented
Director, Ministry of the Environment
Sylvia Davis
Dufferin Wind Power Inc.
John Terry and Dennis Mahony
DECISION DELIVERED BY JUSTIN DUNCAN AND DIRK VANDERBENT
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REASONS
Background
[1]
On October 9, 2014, Vic Schroter, Director, Ministry of the Environment (“MOE”),
issued an amendment (the “Amendment”) to Renewable Energy Approval No.
5460-98BPH8 (the “REA”) to Dufferin Wind Power Inc. (the “Approval Holder” or
“DWP”). The REA was issued on June 10, 2013 to the Approval Holder, regarding the
construction, installation, operation, use and retiring of a Class 4 wind facility with a total
name plate capacity of 99.1 megawatts at a location described in the REA as Dufferin
Wind Power Project, Various Properties SWTS as in MEL3218, Lot 270, Concession 1,
in the Township of Melancthon, County of Dufferin, Ontario a Class 4 wind facility (the
“Project”). The Amendment includes several changes to the REA which were
summarized by the Director in the posting of his decision on the Environmental Registry
(EBR Registry Number; 012·2738, October 14, 2014 (the “Environmental Registry
Posting”)) as follows:

nine minor changes to the temporary construction area to align the horizontal
direction drill bore holes perpendicular to the municipal road crossing;
increase in the construction area to accommodate a change in the location of
an access road and collector line, all within the Project boundaries;

a shift in alignment of one of the underground horizontal direction drill
collector/feeder lines due to the setback restrictions with existing underground
utilities identified through the detailed design process, all within the Project
boundaries;

addition of manholes and the use of trenching to install a 230kV transmission
line; and

a change in the temporary construction access plan for the installation of the
230kV transmission line (47 km length) within the rail corridor, all within the
Project boundaries.
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[2]
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The Amendment and the REA were both issued pursuant to Part V.0.1, s. 47.5 of
the Environmental Protection Act (“EPA”).
[3]
On October 20, 2014, Karen Wallace (the “Appellant”) filed a notice of appeal of
the Director’s October 9, 2014 Amendment with the Environmental Review Tribunal (the
“Tribunal”). The bases of her appeal are described in detail below.
[4]
A preliminary hearing in this matter was held on December 2, 2014 in Shelburne,
Ontario. No persons have requested party, participant, or presenter status in this
proceeding. At the preliminary hearing, the parties made the following requests, which
the Tribunal directed would be heard by written motion:

The Appellant requests:
-
a site visit;
-
an adjournment of proceedings until a decision is rendered in court
proceedings respecting Drennan v. Director, Ministry of the Environment
(2014), 85 C.E.L.R. (3d) 57, (Ont. Env. Rev. Trib.) (“Drennan”); and
-
disclosure by the Approval Holder of a document the Appellant describes
as a mitigation plan (“Mitigation Plan”), which is described in greater detail
below.

The Approval Holder requests that the Appellant’s appeal be dismissed.
The Tribunal also gave procedural directions for filing of these motions, responses and
reply at the preliminary hearing.
[5]
The main hearing in this proceeding is scheduled to commence on January 5,
2015. As described in detail below, the Tribunal grants the Approval Holder’s motion to
dismiss the Appellant’s appeal. Accordingly, the scheduled hearing in this matter is
cancelled.
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Relevant Legislation and Rules
[6]
The relevant legislation and rules are:
Environmental Protection Act
Hearing re renewable energy approval
142.1 (1) This section applies to a person resident in Ontario who is not
entitled under section 139 to require a hearing by the Tribunal in respect
of a decision made by the Director under section 47.5.
Same
(2) A person mentioned in subsection (1) may, by written notice served
upon the Director and the Tribunal within 15 days after a day prescribed
by the regulations, require a hearing by the Tribunal in respect of a
decision made by the Director under clause 47.5 (1) (a) or subsection
47.5 (2) or (3).
Grounds for hearing
(3) A person may require a hearing under subsection (2) only on the
grounds that engaging in the renewable energy project in accordance
with the renewable energy approval will cause,
(a) serious harm to human health; or
(b) serious and irreversible harm to plant life, animal life or the
natural environment.
142.2 (1) An applicant for a hearing required under section 142.1 shall
state in the notice requiring the hearing,
(a) a description of how engaging in the renewable energy project in
accordance with the renewable energy approval will cause,
(i) serious harm to human health, or
(ii) serious and irreversible harm to plant life, animal life or the
natural environment;
(b) the portion of the renewable energy approval in respect of which
the hearing is required; and
(c) the relief sought.
Tribunal’s Rules of Practice
Motions for Dismissal
111. A Party bringing a motion to dismiss a proceeding shall specify the
basis for the motion, which may include that:
…
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(b) the proceeding relates to matters that are outside the jurisdiction
of the Tribunal;
Issues
[7]
The issues are:
1. Whether the Appellant’s appeal should be dismissed; and
2. If the appeal is not dismissed, whether the Appellant’s requests for a site visit,
adjournment of this proceeding, and disclosure of the Mitigation Plan should
be granted.
Discussion, Analysis and Findings
Issue 1: Whether the Appellant’s appeal should be dismissed
Introduction
[8]
In summary, the Approval Holder asserts that the requested relief as set out in
the Appellant’s appeal is unrelated to the changes to the REA which the Director has
approved in the Amendment. As such, the Approval Holder asserts the Appellant’s
appeal is not within the Tribunal’s jurisdiction to address, and therefore, this appeal
should be dismissed.
[9]
The Appellant did not file a response to the Director’s motion. At the preliminary
hearing, she disputed the Approval Holder’s assertion that her appeal is unrelated to the
changes to the REA which the Director has approved in the Amendment.
[10]
In order to understand the requested disposition set out in the Appellant’s appeal,
it is necessary to describe some additional background information. In her appeal, she
states that the MOE has ordered the Approval Holder to seal the foundations of more
than 300 utility poles to guard against possible groundwater contamination in
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Melancthon and Amaranth. She asserts that more of these poles will be erected on an
abandoned rail corridor, which are known to be brownfield sites, and asks how the MOE
and the Approval Holder propose to ensure that no existing contaminates on the rail
corridor from use as a railway leach into the aquifer. Her appeal also refers to an online newspaper report of a statement made by Gary Tomlinson, a senior environmental
officer in the MOE's Guelph office, who identifies there is a small but nonetheless actual
potential for surface water to travel to and possibly into the fractured limestone bedrock.
[11]
At the preliminary hearing, Sylvia Davis, counsel for the Director, advised the
Tribunal that no order for sealing the foundations has been issued, as the Approval
Holder in discussions with the MOE has voluntarily agreed to seal the foundations. As
noted earlier in this Decision of the Tribunal, the Appellant seeks disclosure of a
Mitigation Plan document, by which she means the documentation provided by the
Approval Holder to the MOE describing the work the Approval Holder has proposed in
respect of this undertaking.
[12]
In her appeal, the Appellant also asserts that transmission poles are treated with
a wood preservative, pentachlorophenol, and asks what types of health risks are posed
to the public should this wood preservative leak into local ground water aquifers, which
she asserts are the headwaters of rivers that provide drinking water for a large number
of Ontarians.
[13]
Against this background, the Appellant’s appeal asks several questions, and
requests the following items of relief. Her appeal states:
What the [Environmental Registry] posting does not speak to is the fact
that the Ministry of Environment and Climate Change (MOECC) has
ordered Dufferin Wind Power (DWP) to seal the foundations of more
than 300 utility poles to guard against possible groundwater
contamination in Melancthon and Amaranth. (Source: Orangeville
Banner article, August 18, 2014-artide enclosed).
Questions that need to be answered at the hearing are:
....
7
•
Why did the MOECC not respond to local residents concerns when
the issue was first raised many many months ago;
•
What type of health risks are posed to more than one million
Ontarians drinking water as a result of the pentachlorophenol
(penta), wood preservative potentially leaking into the aquifer;
•
What type of on-going monitoring will occur and at who's expense;
Relief sought:
1. a public process with a written report answering the above noted
questions;
2. proof of the establishment of a Community Liaison Committee which
was a requirement under the REA including:
a. names of those on the committee
b. dates of meetings
c. minutes and agendas
3. the cost of the hearing is borne entirely by Dufferin Wind;
4. any resident may speak at the hearing at no cost to themselves and
at no risk of being sued with a slap suit by any party;
5. DWP bears the cost for expert or technical assistance required by a
private citizen in order to speak at the hearing;
6. a monetary deposit with the Township of Melancthon and the
Township of Amaranth of $5 million to each municipality as a way of
the municipality being able to mitigate against any potential
contamination and harm to their community;
7. circulation to all provincial ministries of the NVCA technical review of
Highlands application to ensure that the existing silo process in
various ministries is overcome;
8. Public Media Notice and mailings issued to all potentially affected
residents (that their drinking water may be, and may have been since
construction began in the spring, polluted with surface contaminants
due to DWP's irresponsible construction methods);
9. investigation into why the MOECC and Guelph Wellington Public
Health and Dufferin County failed to notify the public;
10. an order that DWP conduct and pay for water tests on all potentially
affected wells so that residents do not have to pay upwards of
$1,300.00 for a chemical test-only bacterial tests. are free of charge;
11. an order that DWP provide the pole mitigation document to the public
for unbiased review;
12. an order that DWP provide bottled water and purification systems
and retribution to any test result locations that indicate
contamination;
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13. a reversal of the ERT ruling from 2013: the MOE's order for
mitigation is definitive proof that the project has indeed already
caused a potential threat to human health and the environment;
14. Documentation that states, with specifics, that both the MOECC and
Health Canada approve the use of penta on poles installed with the
methods used by DWP;
15. a revocation of the REA approval due to this public health threat and
the fact that the documents that were approved in the final REA do
not reflect the actual project components that have been built i.e.
pole caissons/contamination;
16. a notification to the OEB from the MOECC regarding the improper
construction methods of the transmission lines - therefore the Leave
To Construct should be revoked;
17. investigation into why DWP has failed to respond to the public's
concerns: does not answer provided phone number, does not
answer emails, has moved out of Shelburne office location, and has
failed to establish a Community Liaison Committee which is one of
the required conditions set out by the MOE in the REA approval;
18. a mitigation plan outlining measures to be taken to ensure that no
contaminants from erecting transmission poles on the abandoned
the rail corridor leach into the aquifer;
[14]
The Approval Holder, in support of its motion to dismiss, has filed a document
entitled “Dufferin Wind Power Project Modifications Document, May 2014”
(“Modifications Document”) which describes in detail the proposed Project design
changes to the REA, which the Director has approved in the Amendment to the REA. It
is not disputed that the description of the Project design changes, as set out in the
Environmental Registry Posting, accurately summarizes the design changes which the
Director has approved.
Submissions of the Appellant
[15]
As noted earlier in this Decision, the Appellant did not file a response to the
Approval Holder’s motion to dismiss her appeal.
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Submissions of the Approval Holder
[16]
The Approval Holder points out that, as a creature of statute, the Tribunal's
jurisdiction is circumscribed by its enabling legislation. Under s. 142.1(2) of the EPA
any person resident in Ontario has the right to require a hearing "in respect of a
decision" made by the Director under s. 47.5(1)(a), (2) or (3) of the EPA.
[17]
The Approval Holder submits that the Appellant’s appeal is not "in respect of” the
Director's decision to approve the Amendment. In support of this submission, the
Approval Holder points out that the Appellant acknowledges in her notice of appeal that
the Director's decision "does not speak to" the concern addressed in her appeal, which
is that utility poles installed on the authority of a previous decision of the Director (to
approve the Project as a whole) could impact drinking water.
[18]
The Approval Holder argues that, since the notice of appeal is not in respect of
the Director's decision to approve certain changes to the REA, the Tribunal has no
jurisdiction to consider it, and this appeal must be dismissed.
[19]
In support of its position, the Approval Holder states that it is a well-recognized
principle of law that an administrative tribunal is a creature of statute that possesses
only those powers conferred on it by its enabling legislation. The Approval Holder,
therefore, maintains that the Tribunal has no inherent power to make any order that
affects a party's substantive rights or obligations without express authority. In support of
this position, the Approval Holder cites the decision of the Supreme Court of Canada in
Dunsmuir v. New Brunswick, 2008 SCC 9, at para 29, which states:
Administrative powers are exercised by decision makers according to
statutory regimes that are themselves confined. A decision maker may
not exercise authority not specifically assigned to him or her. By acting in
the absence of legal authority, the decision maker transgresses the
principle of the rule of law.
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Submissions of the Director
[20]
The Director supports the motion for dismissal brought by the Approval Holder
and adopts its submissions. In addition, the Director relies on the decision of the
Tribunal in Hughes v. Ontario (Ministry of the Environment), [2012] O.E.R.T.D. No. 43
(“Hughes”) which determined that a Tribunal's jurisdiction over an appeal of an
amended permit, is limited to those issues found within the amendment itself and
cannot be stretched to include aspects of the original permit not related to the subject
matter of the amendment.
Findings on Issue 1
[21]
The Approval Holder and the Director have accurately described the scope of the
Tribunal’s jurisdiction in this proceeding. Pursuant to s. 142.1(2) of the EPA, the
Appellant is entitled to require a hearing respecting the Director’s decision, which,
clearly, in this case is the Director’s decision to approve the Amendment.
Consequently, the grounds of the Appellant’s appeal must relate to the Project design
changes which the Director has approved. The Tribunal does not have the jurisdiction
to consider, in this proceeding, other approvals, orders or decisions made by the MOE.
In this regard, the Tribunal notes that the Appellant’s appeal requests a reversal of the
Tribunal’s ruling dismissing the appeals of the Director’s decision to approve the REA
(see Bovaird v. Director, Ministry of the Environment, 2013 CarswellOnt 18046 (Ont.
Env. Rev. Trib.)), and a revocation of the Director’s approval of the REA. However, as
noted in the Director’s submission, in Hughes, the Tribunal found, at para. 37:
The key determination is the scope of the Director's decision. As the
Tribunal observed in Kagawong Power, a director must turn his or her
mind to the matter for there to be a decision. A minor amendment could
trigger an appeal of the entirety of a permit, where, for example, a
director has reopened all of the components of the permit, reviewed
them in depth and made a decision, which would allow an appeal or
leave with respect to the full breadth of the decision made. Where a
Director does not turn his or her mind to the basic terms of the permit, an
appeal of those terms would not be appropriate.
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The Tribunal accepts and adopts that analysis in this case. The Tribunal notes that it
received no evidence to suggest that the Director, in approving the Amendment, has
turned his mind to the basic terms of the REA. To the contrary, the evidence filed on
the motion suggests that the Director only turned his mind to those matters raised in the
Approval Holder’s Modifications Document and set out in the Amendment.
[22]
The question, therefore, is whether any of the requested relief set out in the
Appellant’s appeal relates to the design changes approved in the Amendment. The
Tribunal accepts that it should not interpret the scope and meaning of the requested
relief in an overly restrictive manner. However, as required by s. 142.2(1), the
Appellant’s appeal must describe how implementation of the approved designed
changes will cause serious harm to human health or serious and irreversible harm to
plant life, animal life or the natural environment.
[23]
The Tribunal has carefully considered each of the items of relief requested, and
finds that none of them, on plain reading, relate to any of the design changes approved
in the Amendment. Instead, they focus on the issue of sealing the foundations of the
utility poles. The Tribunal also notes that the Appellant has not provided any
explanation as to how these items of relief could relate to the approved design changes
in the Amendment. Furthermore, as noted in the Approval Holder’s submissions, the
Appellant’s appeal itself states that the approved design changes, as summarized in the
Environmental Registry Posting, do not speak to the sealing of the foundations of the
utility poles.
[24]
For these reasons, the Tribunal finds that none of the items of relief requested in
the Appellant’s appeal, or any other part of her notice of appeal, describes how
implementation of the approved designed changes in the Amendment will cause serious
harm to human health or serious and irreversible harm to plant life, animal life or the
natural environment. Consequently, the Tribunal finds that the relief the Appellant has
requested is outside the Tribunal’s jurisdiction, and, as there are no other issues raised
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in her appeal that relate to the approved design changes in the Amendment, her appeal
must be dismissed.
[25]
As the Tribunal has dismissed the Appellant’s appeal, it is unnecessary to
address the motions filed by the Appellant in Issue No. 2. The main hearing in this
proceeding, scheduled to commence January 5, 2015, is, therefore, cancelled.
DECISION
[26]
The motion by the Approval Holder to dismiss the Appellant’s appeal is granted.
[27]
The main hearing in this proceeding, scheduled to commence January 5, 2015,
is cancelled.
Motion Granted
Appeal Dismissed
Hearing Cancelled
“Justin Duncan”
JUSTIN DUNCAN
MEMBER
“Dirk VanderBent”
DIRK VANDERBENT
VICE-CHAIR
Environmental Review Tribunal
A constituent tribunal of Environment and Land Tribunals Ontario
Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248