Decision Date: February 27, 2019

Panel: Alan Andison

Keywords: Environmental Management Act – ss. 83, 115; pollution abatement order; administrative penalty; non-compliance; consent order

Mark Spittael appealed an administrative penalty of $11,500 that was issued to him by the Director, Environmental Management Act (the “Director”), Ministry of Environment and Climate Change Strategy (the “Ministry”). The penalty arose from the following circumstances.

In mid-February 2015, the Ministry received a call from a member of the public that diesel was spilling from a tank at a gas station and leaking across the property into the Elk River. A few days later, Ministry staff inspected the site and found two sources of hydrocarbons leaking from the property into the Elk River. One source was diesel saturated soil surrounding the diesel tank, and the other was used engine oil that had been dumped on the property. Mr. Spittael owns the property and the gas station, and was determined to be responsible for the tank. Clarkson Contracting Ltd. leased part of the property, and was determined to be responsible for the used engine oil.

In early March 2015, the Ministry issued a pollution abatement order to Mr. Spittael and Clarkson Contracting Ltd. Among other things, the order required Mr. Spittael to retain a qualified professional to design and install a spill containment system on the property by no later than March 31, 2015. Although the leaking diesel tank was taken out of operation and drained, it was left on the property, and no steps were taken to retain a qualified professional to design and install a spill containment system.

During 2015, the Ministry warned Mr. Spittael several times to comply with this requirement. In response, Mr. Spittael questioned the need to retain a qualified professional to design and install a spill containment system.

In June 2018, the Ministry inspected the site and found that this requirement still had not been met. The Ministry’s inspection report recommended that an administrative penalty be levied against Mr. Spittael. In response, Mr. Spittael again questioned the need to retain a qualified professional to design and install a spill containment system.

In October 2018, following an opportunity to be heard, the Director issued the penalty of $11,500 to Mr. Spittael pursuant to section 115 of the Environmental Management Act, for failing to comply with the spill containment system requirement in the pollution abatement order.

Mr. Spittael appealed the penalty on the basis that it was excessive and unreasonable, and he asked that it be cancelled.

Before the appeal was heard, the parties negotiated an agreement to resolve the matter. Mr. Spittael and the Director agreed that the penalty amount would be reduced to $2,000 if Mr. Spittael removed the diesel tank from the property by no later than January 31, 2019. Mr. Spittael removed the tank by that date.

Accordingly, by consent of the parties, the Board ordered that the penalty was reduced to $2,000. The appeal was allowed, in part.