Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: June 16, 2015
CASE NO.: 11-180
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c.E.19, as amended
Appellant: Nortel Networks Limited/ Corporation Nortel Networks Limitée
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, from operations impacting groundwater
Reference No.: 4404-8J5KFV
Property Address/Description: 180 Strowger Boulevard
Municipality: City of Brockville
ERT Case No.: 11-180
ERT Case Name: Nortel Networks Limited v. Ontario (Environment and Climate Change)
Heard: February 26, 2015 by telephone conference call
APPEARANCES:
Parties Nortel Networks Limited/ Corporation Nortel Networks Limitée Counsel Alexandria Pike
Parties Director, Ministry of the Environment and Climate Change Counsel Paul McCulloch
Parties Apex Logistics Inc. Counsel Charles Birchall
ORDER 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 Number 4404-8J5KFV to Nortel Technology Limited/Corporation Nortel Networks Limitée (“Nortel”), Apex Logistics Inc. (“Apex”) and S.C.I. Brockville Corp. (“SCI”) concerning the impacts from contamination from volatile organic compounds (“VOC”), trichloroethylene (“TCE”) and their breakdown products on groundwater at 100 Strowger Boulevard, Brockville, Ontario (the “Site”). According to the Director’s Order, various companies involved in telecommunications have conducted manufacturing activities at the Site since 1963. A subsidiary of Nortel, Brock Telecom Limited, bought the Site in January 1990. Nortel assumed responsibility for the groundwater remediation system as part of the purchase agreement. In 1999, Nortel sold Brock Telecom Limited to SCI, which owned and managed the Site until April 2006 when the Site was sold to Apex, although SCI continued to manufacture electrical equipment on the Site. Apex is the current owner, and has managed and controlled the Site since 2006.
2On September 20, 2011, Nortel filed a notice of appeal with the Environmental Review Tribunal (the “Tribunal”) with respect to the Director’s Order. In the notice of appeal filed by Nortel, a request on behalf of all orderees was made for a stay in this proceeding.
3On January 11, 2012, the Tribunal issued an order staying the Director’s Order with respect to Nortel and Apex, pursuant to s. 143(3) of the Environmental Protection Act (the stay order was later amended, on November 15, 2012). A stay order amending the earlier stay, on consent, was later issued on December 4, 2013. The stay orders were the result of various court proceedings under the Companies’ Creditors Arrangement Act with respect to the rights and liabilities of Nortel. The issues were essentially dealt with when the Court of Appeal released its decision in the Nortel Networks case on October 3, 2013. (Nortel Networks Corporation (Re) 2013 ONCA 599). More background with respect to this matter was outlined in the Tribunal’s order dated December 4, 2013.
4It should be noted that in early 2012, the Tribunal was informed by the parties that SCI, who did not appeal the Director’s Order, had submitted a work plan to undertake certain items required by the Director’s Order. The Director approved the work plan.
Discussion, Analysis and Findings
5Since late in 2013, a number of telephone conference calls (“TCCs”) (held on April 8, October 6, November 18, and December 19, 2014, and February 26, 2015) have been held by the Tribunal where the parties kept the Tribunal informed as to the efforts being made to resolve many, or all, of the outstanding issues.
6During a TCC held on February 26, 2015, the parties agreed to the terms of a stay pending negotiations and the withdrawal of certain aspects of the appeal filed by Nortel. Paul McCulloch, counsel for the Director, MOECC, states that there is an overriding agreement between Nortel and the MOECC that addresses both this Site and three other properties. Mr. McCulloch states that, essentially, Nortel agrees to narrow its appeal to two issues: whether Nortel can be held responsible for the actions of a subsidiary and whether it can challenge any future revisions to work plans required by the MOECC. Mr. McCulloch states that the MOECC is agreeing to amend the stay that has been in effect because an orderee who has not appealed the matter, namely SCI, is undertaking the remedial work. Finally, Mr. McCulloch states that the Tribunal will be given an update with respect to this matter in June, 2015.
7The Tribunal has agreed to amend the stay in this proceeding a number of times and has the full support of the parties to order the stay conditions as proposed. The Tribunal agrees to the terms and conditions of continuing the stay. As noted, all of the parties agree to the terms and conditions and an orderee continues to deal with the environmental issues at the Site.
8The Tribunal therefore grants the continuation of the stay on the terms and conditions noted below.
ORDER
9The Tribunal orders:
(1) The stay of Item Nos. 1-6 of the Director's Order No. 4404-8J5KFV(the "Director's Order") as set out in paragraph 2 of the Tribunal's Order dated December 4, 2013 is hereby revoked.
(2) This matter is adjourned to June 18, 2015, when a status teleconference will be held to update the Tribunal on this matter and with respect to the stay specifically.
(3) The Tribunal accepts Nortel Networks Limited/ Corporation Nortel Networks Limitée’s withdrawal of its appeal of the Director's Order, with prejudice, except with respect to the right to challenge:
the reasonableness of the scope of any future work required by revisions to the work plan(s) submitted pursuant to Item No. 2 of the Director's Order; and
whether Nortel was in "management or control" of the subject undertaking or property.
10A status TCC will be held on Thursday, June 18, 2015 at 2 p.m. to update the Tribunal on this matter and with respect to the stay specifically. The Case Coordinator will inform the parties of the appropriate call-in number.
Request for Amended Stay Granted
Telephone Conference Call Scheduled
“Paul Muldoon”
PAUL MULDOON
VICE-CHAIR
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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