Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE:
May 20, 2015
CASE NO.:
15-019
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c.E.19, as amended
Appellant:
See Appendix 1 - Appellant list
Respondent:
Director, Ministry of the Environment and Climate Change
Subject of appeal:
Order issued to perform work to prevent the discharge of contaminants from the site
Reference No.:
7344-9UKF6C
Property Address/Description:
833 Helena Street
Municipality:
Fort Erie
Upper Tier:
Regional Municipality of Niagara
ERT Case No.:
15-019
ERT Case Name:
McQuiston v. Ontario (Environment and Climate Change)
Heard:
May 13, 2015 in Toronto, Ontario
APPEARANCES:
Parties
Counsel
1350095 Ontario Ltd. and Edwin M. Robertson
Marc McAree and Matthew Gardner
Director, Ministry of the Environment and Climate Change
Andrea Huckins and Justin Jacob
Sanjay Nirula
Bruce McMeekin
ORDER DELIVERED BY HEATHER I. GIBBS AND HUGH S. WILKINS
ORDER
1Effective May 13, 2015, the Environmental Review Tribunal stays portions of the Director’s Order No. 7344-9UKF6C (“Director’s Order”) and amends the Director’s Order in accordance with Appendix 2.
Stay Granted
Director’s Order Amended
“Heather I. Gibbs”
HEATHER I. GIBBS
VICE-CHAIR
“Hugh S. Wilkins”
HUGH S. WILKINS
MEMBER
Appendix 1 – List of Appellants
Appendix 2 – Interim Order Re 1350095 Ontario Limited, Edwin M. Robertson and Sanjay Nirula
If there is an attachment referred to in this document,
please visit www.elto.gov.on.ca to view the attachment in PDF format.
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
Appendix 1
List of Appellants
Appellant Name
File No.
Iain McQuiston
15-019
Sanjay Nirula
15-020
DTZ Barnicke Niagara Limited
15-021
Gerald Douglas Warne
15-022
1350095 Ontario Limited
15-023
Edwin Robertson
15-024
Appendix 2
Interim Order Re 1350095 Ontario Limited, Edvin M. Robertson and Sanjay Nirula
PREAMBLES
On consent of 1350095 Ontario Limited and Edwin M. Robertson (the “Moving Parties”) and the Director, Item No. 3 in the Director’s Order is stayed as against the Moving Parties pending the final resolution of this Appeal.
The dates for completion of the work ordered in this Interim Order may be amended by the Tribunal on consent of the Director and the Moving Parties.
The Director agrees to stay the Director’s Order against Sanjay Nirula pending the final resolution of this Appeal provided that the work required by the Director’s Order, as amended, is complied with.
For the purposes of Item No. 7 of the Director’s Order, as amended by this Interim Order, the Director agrees that Ministry technical or abatement staff will be available to meet with the Moving Parties’ environmental consultants to discuss the plan required in Item No. 7.
For the purposes of Item Nos. 7, 9 and 10 of the Director’s Order, as amended by this Interim Order, the Director and/or Moving Parties may bring a motion on not less than 5 days’ notice pursuant to Rules 93 to 108 to the Environmental Review Tribunal for directions, if the Moving Parties disagree with the Director’s modifications, if any, to the plan required in Item No. 7. On consent of both the Director and the Moving Parties, these parties may elect to mediate pursuant to Rules 156 to 160 the terms of the plan at the Tribunal prior to initiating a motion.
For the purposes of Item Nos. 9 and 10 of the Director’s Order, as amended by this Interim Order, the Moving Parties may bring a motion, on an urgent basis and with notice, pursuant to Rules 93 to 108 to the Environmental Review Tribunal for directions, a stay and/or other relief of the “within 5 days…[to]…begin to implement the plan” (Item No. 9) and/or delivery of a written report to the Director “no later than 14 weeks after” (Item No. 10), if the Director and Moving Parties do not agree on the terms of the plan required in Item No. 7. Further, the Director shall forthwith: (i) give due consideration to any request made by the Moving Parties pursuant to Preamble 2 above for an extension of time under Item Nos. 9 and/or 10, and (ii) respond to each such request.
Nothing in this Interim Order shall fetter the discretion of the Director to take any regulatory action as may be necessary in the circumstances.
1350095 Ontario Limited shall have the qualified person take reasonable steps to prevent the discharge of contaminants in surface water from the site to the natural environment until completion of Item 10 of the Director’s Order as amended by this Interim Order.
On consent of the Director and the Moving Parties, Item Nos. 4, 7, 8, 9 and 10 of the Director’s Order are amended and a new Item 11 is added by this Interim Order as against the Moving Parties on an interim basis pending the final resolution of this Appeal as follows:
ITEMS
Item No. 4 - Compliance Date: April 10, 2015
No later than the Compliance Date, the Moving Parties shall have the qualified person take all reasonable actions to identify all on-site sources of contaminants which may discharge off-site in surface water.
Item No. 7 - Compliance Date: May 29, 2015
No later than the Compliance Date, the named entities shall retain the services of a Professional Engineer or Professional Geoscientist for the purpose of developing a written plan (the plan) to:
a) investigate soil impacts at the site and the swale located adjacent to and immediately south of the site resulting from discharge into the natural environment from the sources identified in Item 4 of this Order
b) investigate groundwater impacts at the site resulting from discharge into the natural environment from the sources identified in Item 4 of this Order
c) investigate sediment and surface water impacts in the immediate vicinity of the outfall of the swale to the Region’s ditch resulting from discharge into the natural environment from the sources identified in Item 4 of this Order
d) summarize soil, groundwater, sediment and surface water impacts associated with 7(a), 7(b) and 7(c)
e) upon completion of 7(a), 7(b), 7(c) and 7(d) make recommendations about addressing soil, groundwater, sediment and surface water impacts which may include further investigation and/or delineation of same on-site and/or off-site.
Item No. 8 - Compliance Date: May 29, 2015
No later than the Compliance Date, the Moving Parties shall submit the plan to the Director which shall include the items outlined in Item No. 7 of this Order and a proposed schedule for implementing the plan.
Item No. 9
Within 5 days of the date the Director notifies the Moving Parties in writing that the plan has been accepted and/or modified, the Moving Parties shall begin to implement the plan in accordance with the accepted schedule of implementation and any modifications and provide the Director with written weekly updates on the work completed under the plan in the previous week.
Item No. 10
No later than 14 weeks after the Director notifies the Moving Parties as per Item No. 9, the Moving Parties shall submit a written report to the Director which describes all work undertaken in accordance with the plan.
Item No. 11
A named entity shall immediately notify the Director verbally and in writing if access to any property, monitoring equipment or facility (where access to the property, equipment or facility is required for doing the things required by this Order) is not practicable, or prevented or otherwise inaccessible. The written notice shall state (a) why the access is required, and (b) the details and reason why access is not practicable, or prevented or otherwise inaccessible. Upon receipt of such notice from a named entity, the Director will consider the issuance of an order pursuant to subsection 196(2) of the EPA that requires the granting of access to the named entities as necessary for purposes of doing the things required by this Order. During the period of any prohibition of access including delay pending the decision of the Director with respect to the issuance of an Order pursuant to 196(2) of the EPA in granting access to the named entities, the named entities are not required to do the thing specified in the written notice to the Director.