Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: June 30, 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: June 18, 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
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 a September 2011 motion regarding environmental matters in 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. After that time, the Tribunal held a number of TCCs and ordered a number of extensions to the stay. A more detailed history of the stay extensions and a review of the status of the negotiations among the parties is outlined in the Tribunal order dated June 17, 2015.
5During a TTC held on February 25, 2015, Paul McCulloch, counsel for the Director, MOECC, stated that the MOECC and Nortel had negotiated a “framework agreement” which addresses the issues with a number of sites involving Nortel. With respect to the Site, Nortel and the MOECC agreed that Nortel would undertake certain work and requested that the Tribunal accept Nortel’s withdrawing or narrowing of its appeal except with respect to its right to challenge the reasonableness of the scope of any specified future work required by the MOECC and to challenge 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. In an Order dated June 17, 2015, the Tribunal accepted the terms and conditions proposed by the Parties and extended the stay to June 30, 2015. A further TCC was held on June 18, 2015.
Discussion, Analysis and Findings
6During the June 18, 2015 TCC, the Parties requested on consent that the proceeding be adjourned until September 24, 2015 and the stay be extended to September 30, 2015 to provide the Parties time to further consult and finalize the necessary remedial actions. As no party has raised any concerns with respect to the bars for a stay outlined in s. 143(3) of the Environmental Protection Act and due to the need for the parties to finalize the remedial works, the Tribunal finds that the requested extension of the stay should be accepted.
ORDER
7The Tribunal orders that:
(1) Items Nos. 1, 2, 5 to 8, 11, 12, 17-19 of Director's Order No. 8835-8J4QRU 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 September 30, 2015 or until the Tribunal orders otherwise.
(2) This proceeding is adjourned to a status TCC to be held on September 24, 2015 at 10 a.m. The Tribunal case coordinator will contact the parties to provide call-in information for the status TCC.
Stay Extension 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
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