Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: June 1, 2015
CASE NO.: 11-173
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c.E.19, as amended
Appellant: Belden CDT (Canada) Inc. (ERT Case No. 11-173)
Appellant: Nortel Networks Limited/ Corporation Nortel Networks Limitée (ERT Case No. 11-179)
Appellant: 2058756 Ontario Limited (ERT Case No. 11-182)
Respondent: Director, Ministry of the Environment and Climate Change
Subject of appeal: Order issued under sections 18 and 196 and 197 of the Environmental Protection Act regarding the discharge of volatile organic compounds, including trichloroethylene, and other contaminants from operations impacting groundwater
Reference No.: 7326-8J4PU3
Property Address/Description: 700 Gardiners Road
Municipality: City of Kingston
ERT Case No.: 11-173
ERT Case Name: Belden CDT (Canada) Inc. v. Ontario (Environment and Climate Change)
Heard: August 9, October 2, and December 11, 2013; April 8, June 25, and October 7, 2014; February 26, and April 8, 2015 by telephone conference call
APPEARANCES:
| Parties | Counsel |
|---|---|
| Director, Ministry of the Environment and Climate Change | Paul McCulloch |
| Nortel Networks Limited/ Corporation Nortel Networks Limitee | Alexandria Pike |
| Belden CDT (Canada) Inc. | Dennis O’Leary |
| Taggart Gardiners Corporation | Tom Taggart |
| 2058756 Ontario Limited | Tamara Farber (December 11, 2013 only) |
DECISION DELIVERED BY Paul Muldoon
REASONS
Background
1On September 7, 2011, Trevor Dagilis, Director, Ministry of the Environment (“MOE” and now the Ministry of the Environment and Climate Change “MOECC”), issued Director’s Order No. 7326-8J4PU3 to Nortel Technology Limited/ Corporation Nortel Networks Limitée (“Nortel”), Belden CDT (Canada) Inc. (“Belden”) and 2058756 Ontario Limited concerning the impacts from contamination from volatile organic compounds (“VOC”s), including trichloroethylene (“TCE”), and methyl ethyl ketone (“MEK”) and other contaminants in groundwater at 700 Gardiners Road, Kingston, Ontario (the “Site”). According to the Director’s Order, Nortel owned the Site from about May 1971 until about February 1996. In 1996, Nortel sold the Site to Belden. The Site was subsequently purchased by 2058756 Ontario Limited in 1995 which later went into receivership. The receiver sold the property in 2014 to Taggart Gardiners Corporation (“Taggart”) who remains the owner of the Site.
2From 1971 to about 1993, Nortel produced cable for the telecommunication industry at the Site. The manufacturing process carried out at the Site included the use of VOCs, including MEK. Groundwater contamination was identified in 1987 when two underground storage tanks which had contained waste oil and diesel fuel were found. It was discovered that the fractured bedrock in the area of the tanks was contaminated with a dense non-aqueous phase liquid later identified as primarily TCE. Additional tanks were also found at the Site, at least one of which was used to store MEK. In 1996, concentrations of TCE were found in the area of the former MEK tank. The MOE received monitoring and remediation reports related to the Site from 1995 to 2009.
3On September 16, 2011, Belden filed a notice of appeal with the Environmental Review Tribunal (the “Tribunal”) with respect to the Director’s Order that called for remedial measures for the Site. On September 20, 2011, Nortel filed a notice of appeal and on September 21, 2011, 2058756 Ontario Limited filed a notice of appeal with the Tribunal.
4In its order dated November 16, 2011, the Tribunal granted a stay in this proceeding. The stay on most items was granted until 30 days after the receipt of the decision of the Ontario Superior Court of Justice with respect to the September 2011 motion regarding environmental matters in the Companies’ Creditors Arrangement Act (“CCAA”) proceedings involving Nortel. During the telephone conference call (“TCC”) on April 10, 2012, the parties informed the Tribunal that they agreed to extend the stay in this proceeding before the Tribunal. More details about this proceeding are found in the Tribunal’s order dated April