Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: June 12, 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

Appellants: 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

REASONS

Background

1These are the reasons for the disposition of the Environmental Review Tribunal (the “Tribunal”) given orally on May 13 and confirmed in writing on May 20, 2015.

2On March 19, 2015 the Director, Ministry of the Environment and Climate Change issued Order No. 7344-9UKF6C (the “Director’s Order”) to a number of individuals and entities relating to a spill of environmental contaminants including toluene and acetone at 833 Helena Street, Fort Erie, Regional Municipality of Niagara, Ontario (the “Site”). The Site is owned by 1350095 Ontario Limited. A number of the persons named on the Director’s Order appealed to the Tribunal under s. 140 of the Environmental Protection Act (“EPA”). A full list of the appellants is included in Appendix 1.

3Three of the appellants, Sanjay Nirula, 1350095 Ontario Limited (the “Company”), and Edwin Robertson, filed notices of motion asking for a stay of the Director’s Order under Rules 108 and 109 of the Tribunal’s Rules of Practice (the “Rules”) until the Tribunal issues a final decision on the appeals. Mr. Nirula also filed a notice of motion to adjourn the hearing of the stay motion, to provide him with sufficient time to file a Notice of Constitutional Question with the Attorneys-General of Canada and Ontario.

4The motion to stay the operation of the Director’s Order was scheduled to be heard on May 13, 2015 in Toronto, Ontario. At the opening of the stay hearing, the Company and Mr. Robertson (the “Moving Parties”), as well as the Director, informed the Tribunal that they had come to an agreement on the terms of a partial stay and interim amendments to the Director’s Order (the “Interim Order”) pending the final resolution of the appeal, which they presented to the Tribunal for approval. The agreement also stays the Director’s Order against Mr. Nirula pending the final resolution of the appeal. With the Tribunal’s acceptance of the agreement, Mr. Nirula agreed to abandon his stay motion and request for adjournment.

Work Items in the Director’s Order subject of the Stay Motion

5Andrea Huckins, counsel for the Director, provided non-contentious background information to the Tribunal, supplemented by information from Marc McAree, counsel for the Moving Parties. Ms. Huckins stated that the proposed Interim Order (attached as Appendix 2) will do the following:

a. Stay the requirements in item No. 3 of the Director’s Order against the Moving Parties, pending the final disposition of the appeal;

b. Amend Item No. 4 of the Director’s Order to require the identification of on-site sources of off-site surface water contamination;

c. Amend Item No. 7 of the Director’s Order to require the preparation of a plan for the investigation of soil, groundwater, sediment and surface water impacts, including surface water impacts in the immediate vicinity of a nearby swale outfall;

d. Amend Item No. 8 of the Director’s Order with respect to its compliance date and require the submission of the plan referred to in Item No. 7 to the Director to include a proposed schedule for implementation;

e. Amend Item No. 9 of the Director’s Order to require the Moving Parties to implement the plan as accepted or modified by the Director and provide the Director with written weekly updates on the work completed;

f. Amend Item No. 10 of the Director’s Order with respect to its compliance date and require the Moving Parties to submit a written report to the Director which describes all work undertaken in accordance with the plan; and

g. Amend the Director’s Order to include an Item No. 11, which requires the Moving Parties to immediately notify the Director if they are unable to access any property, equipment or facilities necessary for carrying out the Director’s Order.

6Ms. Huckins stated that the proposed Interim Order will also stay all of the requirements of the Director’s Order as against Mr. Nirula, pending the final resolution of the Appeal, provided that the work in the Director’s Order, as amended by the Interim Order, is complied with.

7Ms. Huckins stated that the Interim Order also contains several procedural requirements agreed to by the Director and Moving Parties intended to govern the procedure regarding compliance with the Interim Order or any dispute arising as a result of the Interim Order.

8Bruce McMeekin, counsel for Mr. Nirula, stated that, while he does not object to the Interim Order, he has no control over whether the Moving Parties do the work in question and he is concerned that provisions of the Director’s Order might apply to him, should the Company stop doing the work. Given that the parties were presenting an agreement for approval by the Tribunal, Mr. McMeekin stated that the adjournment motion would not proceed.

9Also present at the May 13, 2015 stay motion were Christine Carter, counsel for the Town of Fort Erie (the “Town”), and Jessica Mathewson, counsel for the Regional Municipality of Niagara (the “Region”), both of whom requested to make submissions on the proposed terms of the stay. Neither the Town nor the Region has official status to participate in these proceedings. Nonetheless, the parties had no objection to the requests by the Town and the Region to make submissions and the Tribunal heard their submissions. The parties to the motion then had an opportunity to respond.

10The Tribunal heard the parties’ submissions and orally granted the stay and interim amendments to the Director’s Order as per the Interim Order attached as Appendix 2.

Relevant Legislation and Rules

11Environmental Protection Act

143(2) The Tribunal may, on the application of a party to a proceeding before it, stay the operation of a decision or order, other than,

(a) an order to monitor, record and report;

143(3) The Tribunal shall not stay the operation of a decision or order if doing so would result in,

(a) danger to the health or safety of any person;

(b) impairment or serious risk of impairment of the quality of the natural environment for any use that can be made of it; or

(c) injury or damage or serious risk of injury or damage to any property or to any plant or animal life.

Rules of Practice of the Environmental Review Tribunal

110. The Party shall provide evidence and submissions in support of its motion respecting:

(a) how the relevant statutory tests that are applicable to the granting or removal of a stay are met;

(b) whether there is a serious issue to be decided by the Tribunal;

(c) whether irreparable harm will ensue if the relief is not granted; and

(d) whether the balance of convenience, including effects on the public interest, favours granting the relief requested.

Discussion, Analysis and Findings

12The Director and Moving Parties presented the terms of the consent stay for approval by the Tribunal. No issues were raised by the parties about the Tribunal’s jurisdiction to grant a stay and amendment to the Director’s Order on an interim basis. Nevertheless, the Tribunal considered its jurisdiction to stay an order of the Director under s. 143 of the EPA, and considered the criteria in Rule 110 to exercise its discretion to grant a stay.

13Sections 143(2) and (3) of the EPA limit the Tribunal’s jurisdiction to stay the operation of a decision or order of a Director. Section 143(2)(a) precludes the Tribunal from granting a stay where the operation of a decision or order is to “monitor, record and report”. Section 143(3) precludes it from granting a stay “if doing so would result in (a) danger to health or safety of any person, (b) impairment or serious risk of impairment of the quality of the natural environment for any use that can be made of it, or (c) injury or damage or serious risk of injury or damage to any property or any plant or animal life”.

14Regarding the application of s. 143(2)(a) of the EPA, the Tribunal finds that the work items that are the subject of this stay do not fall into the category of an order to monitor, record and report.

15Regarding the application of s. 143(3)(a) of the EPA, the Director pointed to the evidence of Ronald Tripp, the Commissioner of the Public Works Department with the Region, who swore in his affidavit that “there is no immediate threat at this time from a public health perspective” provided the work currently being carried out at the Site continues. Mr. Tripp stated that, based on the information available to date, the contamination of surface water does not appear to be impacting the nearby Rosehill water treatment plant. In addition, the Director retains the power to compel additional investigative or remedial steps that may be required on an immediate basis, should the circumstances warrant. The Director noted that the proposed Interim Order recognizes this at paragraph 6 of the preamble.

16Regarding any possible impairment of the natural environment or injury or damage to any property or plant or animal life under s. 143(3)(b) and (c), the Director pointed to the evidence of Sarah Day, a MOECC surface water scientist, and submitted that the work undertaken to prevent the discharge of contaminants from the Site to the natural environment and the removal and disposal of off-site contaminated surface and ground water has addressed these concerns. The Director stated that with these efforts along with an investigation of sediment and surface water impacts as envisioned in the proposed Interim Order, such risks of impairment, damage or injury are diminished to the degree that the statutory bars in s. 143(3) do not apply.

17The Tribunal relies on the submissions of the Director and the supporting evidence that the operation of the partial stay and Interim Order as proposed would not result in a danger to health or safety, or a danger to the environment as outlined in s. 143(3). The Tribunal is further satisfied in this regard on the bases of Mr. Tripp’s and Ms. Day’s affidavits, and the continuing requirement under paragraph 8 of the preamble of the Interim Order for the Company to prevent contamination of the natural environment. The Tribunal further notes that paragraph 7 of the preamble confirms that the Director retains the power to order further investigative and remedial action, as required.

18Where the Tribunal has jurisdiction to grant a stay, it will consider the factors listed under Rule 110 in exercising its discretion whether to grant the stay. The parties addressed the considerations under Rule 110 (a) to (c) and no concerns were raised.

19The Moving Parties and the Director submitted that the key consideration in this case is the balance of convenience as per Rule 110(b), and that in this case it favours the stay because the Interim Order includes assurances that the required work will continue to be done during the period of the stay.

20The Director submitted that:

… the amendments as set out in the Interim Order will enable the Moving Parties to carry out the necessary work for determining the scope and nature of the contamination on the site and any impacts therefrom. This work will further the public interest toward the eventual goal of remediating the impacted properties.

21Counsel for the Town submitted that Rule 110 would be better served if the first part of Item 3 of the Director’s Order, relating to ongoing containment, is not stayed and the second part of Item 3, relating to whether there should be groundwater work, is only stayed until May 29, 2015, when the investigation plan outlined in Item 7 is in place.

22Counsel for the Region also submitted that Item 3 should not be stayed, or in the alternative that Item 3 only be stayed with respect to groundwater remediation. She noted that, while the Region is not a named orderee to the Director’s Order, it has already spent over 1.5 million dollars cleaning the Site. She stated that the Region will likely be left responsible for cleaning up any remaining or further contamination if the Moving Parties are no longer required to clean up the Site.

23In response to the concerns of the Town and the Region, the parties to the stay motion consented to including paragraph 8 of the preamble of the proposed Interim Order, which states:

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.

24The Tribunal accepts the joint submissions of the Director and the Moving Parties that the granting of this partial stay and amendment to the Director’s Order, with the inclusion of paragraph 8, is in the public interest because it will enable the Moving Parties to carry out the necessary work for determining the scope and nature of the contamination on the Site and any impacts therefrom. In addition, in this case, where there are assurances of continuing work to prevent further contamination and to remediate known contamination, the Tribunal finds that the public interest is furthered through the efficient and effective expenditure of available funds. In these circumstances, the Tribunal finds that the balance of convenience favours the granting of the stay and amendments to the Director’s Order.

ORDER

25Effective May 13, 2015, the Environmental Review Tribunal stays portions of the Director’s Order No. 7344-9UKF6C and amends the Director’s Order pending the final resolution of this appeal 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, Edwin M. Robertson and Sanjay Nirula

PREAMBLES

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. Nothing in this Interim Order shall fetter the discretion of the Director to take any regulatory action as may be necessary in the circumstances.

8. 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.

9. 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.