Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: June 17, 2015

CASE NO.: 11-176

PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c.E.19, as amended

Appellant: Palmer Road Properties Corp. (ERT Case No. 11-176)

Appellant: Sidney Street Properties Corp. (ERT Case No. 11-177)

Appellant: Nortel Networks Limited/ Corporation Nortel Networks Limitée (ERT Case No. 11-178)

Appellant: Corporation of the City of Belleville (ERT Case No. 11-183)

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Order issued under sections 18, 196 and 197 of the Environmental Protection Act regarding the discharge of contaminants impacting groundwater.

Reference No.: 8835-8J4QRU

Property Address/Description: 250 Sidney Street

Municipality: City of Belleville

ERT Case Nos.: 11-176

ERT Case Name: Palmer Road Properties Corp. v. Ontario (Environment and Climate Change)

Heard: February 25, 2015 by telephone conference call

APPEARANCES:

Parties	Counsel
Sidney Street Properties Corp. and Palmer Road Properties Corp.	Ian Brady
Nortel Networks Limited/ Corporation Nortel Networks Limitée	Alexandria Pike
Director, Ministry of the Environment and Climate Change	Paul McCulloch
Corporation of the City of Belleville	David DeMille

ORDER DELIVERED BY PAUL MULDOON

REASONS FOR DECISION

Background

1On September 7, 2011, Trevor Dagilis, Director, Ministry of the Environment (“MOE” and now the Ministry of Environment and Climate Change “MOECC”), issued Director’s Order No. 8835-8J4QRU to Nortel Networks Limited/Corporation Nortel Networks Limitée (“Nortel”), Sidney Street Properties Corp. (“Sidney”), Palmer Road Properties Corp. (“Palmer”) and the Corporation of the City of Belleville (“Belleville”) (collectively the “Appellants”) concerning the impacts from contamination by volatile organic compounds, trichloroethylene (“TCE”) and their breakdown products on groundwater at 250 Sidney Street, Belleville, Ontario (the “Site”) where Nortel operated a manufacturing business from 1947 to about 2000. At that time, the Site was sold by Nortel to Sidney and divided into three parts. The Site is now owned by Sidney, Palmer and Belleville.

2On September 19, 2011, Sidney and Palmer filed notices of appeal, and on September 20, 2011, Nortel and Belleville also filed notices of appeal, with the Environmental Review Tribunal (the “Tribunal”) with respect to the Director’s Order. The notice of appeal filed by Nortel requested a stay in this proceeding. A telephone conference call (“TCC”) to hear the stay request on behalf of all of the parties was scheduled for October 7, 2011.

3On November 16, 2011, the Tribunal issued an order granting a stay in this matter, pursuant to s. 143 of the Environmental Protection Act. The stay of 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. In Nortel Networks Corporation (Re), 2012 ONSC 1213 (“Nortel Networks”), the Court decided to stay the Tribunal’s proceedings with respect to Nortel, but not with respect to the other orderees named in the Director’s order. As a result of that decision, the Tribunal, with the consent of the parties, issued an order dated April 30, 2012 amending the stay issued by the Tribunal on November 16, 2011.

4The Tribunal’s order dated April 30, 2012 outlines how the items in the November 16, 2011 order would be carried out in light of the Court’s decision in Nortel Networks that the Tribunal’s proceedings are only stayed with respect to Nortel.

5After that time, the Tribunal held a number of TCCs and ordered a number of extensions to the stay as outlined in the Tribunal order dated December 4, 2013. The December 4, 2013 order extended the stay until April 30, 2014.

6The Tribunal held a number of TCCs between December 18, 2013 and May, 2014. During a May 12, 2014 TCC, the parties agreed to, and the Tribunal granted, an extension of the stay in this matter until December 31, 2014. Further TCCs were held on June 25, 2014, October 7, 2014, November 18, 2014 and December 11, 2014. During the TCC on December 11, 2014, Paul McCulloch, counsel for the Director, MOECC, stated that the Director and Nortel were in the process of, and close to, executing an agreement with respect to the remediation matters concerning the Site, with the exception of the south-east corner of the Site. The parties requested, and the Tribunal agreed, to extend the stay until January 14, 2015. A TCC was scheduled for February 25, 2015.

Discussion, Analysis and Findings

7During the TCC on February 25, 2015, Mr. McCulloch, outlined that the MOECC and Nortel have negotiated a “framework agreement” which addresses the issues with a number of sites involving Nortel. With respect to this Site, Nortel and the MOECC have agreed that Nortel has agreed to undertake certain work as outlined in the proposed order. The agreement between these parties requests that the Tribunal accept Nortel’s withdrawing or narrowing of its appeal except the right to challenge the reasonableness of the scope of any future work required by the MOECC in relation to revisions to the work plans and the iterative restoration process outlined in the order; and whether Nortel can be held responsible for the remediation of the southeast corner and for the remediation of off-site impacts to the south and east of the Site. The effect of this agreement is to revoke the previous stay issued by the Tribunal and replace it with the terms outlined below.

8Based on the consent of the parties, the Tribunal accepts the terms and conditions of the proposed order submitted to the Tribunal. The Tribunal further notes that the requirements also provide that the Director may request a review of the stay at any time during this period, should further action be required. It should be mentioned that the parties have been dealing with this Site for some years. No party has raised any concerns with respect to the bars for a stay outlined in s. 143(3) of the Environmental Protection Act. For these reasons, the Tribunal finds that the revised requirements should be accepted and that the stay should be in effect to June 30, 2015.

ORDER

9The Tribunal orders that:

(1) Items Nos. 1, 2, 5 to 8, 11, 12, 17-19 of Director's Order No. 8835-8J4QRU ("Director's Order") are stayed with respect to the Southeast Corner of the Site and any off-site impacts to the south or east of the Site until June 30, 2015 or until the Tribunal orders otherwise.

(2) Items 2, 3, 4 and 5 in the Director's Order are amended to change the November 30, 2011 deadline to June 30, 2015. The parties acknowledge that such Items have been satisfied, except with respect to the Southeast Corner and off-site impacts to the south or east of the Site.

(3) Nortel Networks Ltd. ("Nortel") shall submit by no later than April 30, 2015 any revisions to its Restorative Action Plan dated June 2014 (accepted by the MOECC on October 8, 2014, the "Restorative Action Plan") in respect of Item 2 of the Director's Order as it relates to the Southeast Corner and off-site impacts to the south or east of the Site. Such revisions are to take into account interim work undertaken in relation to such area.

(4) In addition, Nortel shall, no later than June 30, 2015, update the 2014-2015 work plan set out in the Proposed Stay Order dated May 8, 2014, the Restorative Action Plan and the 2014 Work Plan for Additional Off-Site Delineation dated June 17, 2014 (accepted by the MOECC on October 8, 2014) to account for all interim work undertaken by that date. The parties acknowledge that, as new data is obtained from the ongoing work, such work plans may need to be further revised and the parties reserve all rights with respect to any such revisions.

(5) The Tribunal accepts Nortel’s withdrawal of its appeal of the Director's Order except the right to challenge:

a. the reasonableness of the scope of any future work required by the MOECC in relation to revisions to the work plans and the iterative restoration process reference above; and

b. whether Nortel can be held responsible for the remediation of the Southeast Corner and for the remediation of off-site impacts to the south and east of the Site.

(6) The issuance of the stay is without prejudice to the MOECC requesting that the stay be lifted or the terms of the stay altered, by motion to the Tribunal, if it is of the opinion that such action is necessary for the purposes of the Environmental Protection Act where necessary to protect the public interest.

10The Tribunal will conduct a further review of the status of this proceeding, to be heard by TCC on June 18, 2015 at 10 a.m., for which the Case Coordinator will provide the parties the call-in information.

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