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Should it really take more than 22 years to clean up a domestic fuel spill?The Environmental Review Tribunal has allowed a Muskoka cottager to withdraw his appeal against the latest in a series of Ministry of the Environment orders arising out of a 1990 spill. According to the ERT, Alex Krek lost 3500 litres of heating  oil from his above ground tank in 1990. He didn’t report the spill until the following year. Despite some cleanup efforts, and many years of litigation, there is still free product on wells on neighbouring properties.

A 2006 Provincial Officer’s order required Mr. Krek to submit a Remedial Action Plan. After appealing the order, Mr. Krek submitted a RAP in 2007. The RAP promised a Site Conceptual Model, which Mr. Krek had not submitted by May 2009. The MOE issued a new POO requiring him to submit a Site Conceptual Model, described in the POO as a review of existing studies. The purpose of the SCM was to help evaluate remedial options.

Mr. Krek appealed, but eventually submitted a report. The report reviewed all existing information, and concluded that it would take $150,000 to $250,000 to get enough additional information about the subsurface to develop a remedial plan. ” “This lack of knowledge makes it particularly difficult to make any sensible decisions as this time as to any preferred remedial solution.” Despite this very disappointing conclusion, the Ministry agreed that this report satisfied the order. Mr. Krek then sought to withdraw his appeal. His neighbours objected, asking the ERT to order Mr. Krek to do more, more quickly, to get the spill cleaned up.

After two years of wrangling, the ERT allowed Mr. Krek to withdraw this appeal. The ERT’s Rule 200 sets out its claim to jurisdiction to prevent parties from withdrawing their appeal, if the withdrawal would prejudice the environment, e.g. if it is based on a settlement that undermines or weakens the initial Order. (That didn’t apply here, since the MOE was satisfied that  Krek had satisfied the Order, and the ERT accepted the Director’s decision on that.) The broader question was whether the neighbours should be able to force the appeal to continue, in the hope of persuading the ERT to broaden the Director’s original order.

The ERT ruled that it would not make a broader order in this case, because the underlying appeal was restricted to the “subject matter” of the Site Conceptual Model, not to the entire cleanup:

“Even if the Tribunal could do what is being asked for by some of the Parties, the issuance of a direction to the Director to take some kind of action is not the most expedient mechanism to achieve this goal. At best, after the continuation of the Hearing, the Tribunal could order the Director to examine the data gaps identified in SCM. The Director has already committed to undertake this task. The Tribunal expects, along with all affected interests, that the Director will, in an expedited fashion, outline a plan of action for the remediation of the Site that will address the research needs and actions that would be protective of both the local environment and the interests of the neighbours. Again, the Director has committed, and the Tribunal fully expects, that the neighbours would have direct input into this plan of action.”

So, no one knows what to do about the contamination, and the affected neighbours are still waiting… Imagine how they must feel…

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