Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: November 26, 2015
CASE NO(s).: 12-012 and 12-120
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellant: Allan Rubin (ERT Case No. 12-012)
Appellant: Howard Rubin (ERT Case No. 12-013)
Appellant: Ronald Rubin (ERT Case No. 12-014)
Respondent: Director, Ministry of the Environment and Climate Change
Subject of appeal: Order issued under sections 17, 18 and 196 of the Environmental Protection Act to carry out work regarding PCB waste storage containers
Reference No.: 8365-8RXNEP
Property Address/Description: 1810 Allanport Road
Municipality: City of Thorold
Upper Tier: Regional Municipality of Niagara
ERT Case No.: 12-012
ERT Case Name: Rubin v. Ontario (Environment and Climate Change)
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellant: Allan Rubin (ERT Case No. 12-120)
Appellant: Howard Rubin (ERT Case No. 12-121)
Appellant: Ronald Rubin (ERT Case No. 12-122)
Respondent: Director, Ministry of the Environment and Climate Change
Subject of appeal: Order issued under sections 17, 18, 132 and 196 of the Environmental Protection Act, to carry out work regarding PCB waste and any other waste
Reference No.: 8468-8XTKD3
Property Address/Description: 1810 Allanport Road
Municipality: City of Thorold
Upper Tier: Regional Municipality of Niagara
ERT Case No.: 12-120
ERT Case Name: Rubin v. Ontario (Environment and Climate Change)
Heard: August 27, 2015 and October 16, 2015, by telephone conference call
APPEARANCES:
Parties Allan Rubin, Howard Rubin, and Ronald Rubin
Counsel Matthew Gardner
Parties Director, Ministry of the Environment and Climate Change
Counsel Nicholas Adamson
Participants Horizon Utilities Corporation Alan Mark
City of St. Catharines Leonard Griffiths
City of Thorold Sarah Draper
ORDER DELIVERED BY PAUL MULDOON AND HUGH S. WILKINS
REASONS
Background
1A detailed background to these proceedings is set out in the orders of the Environmental Review Tribunal (the “Tribunal”) in Tribunal Case Nos. 12-012 and 12-120, dated April 2, 2013. In summary, Howard Rubin, Allan Rubin and Ronald Rubin (the “Appellants”), are brothers who were associated with Harry Rubin & Son Limited, an Ontario corporation, which carried on business as a recycler of metals. The company is the registered owner of a property located at 1810 Allanport Road (the “Site”) in Thorold, Ontario.
2Materials contaminated by monochlorinated and/or polychlorinated biphenyls (“PCB waste”) have been stored at the Site since 1989. On February 29, 2012, the first Director’s order related to these proceedings, Order No. 8365-8RXNEP, was issued under the Environmental Protection Act (“EPA”) requiring that some storage areas containing PCB waste at the Site be covered and locked. On September 6, 2012, a subsequent order, No. 8468-8XTKD3, was issued against the Appellants, requiring them to, among other things, prepare, submit, and implement a plan for removal and destruction of all PCB waste and other wastes on site and provide financial assurance for the required work at the Site.
3The Appellants appealed Director’s Order No. 8365-8RXNEP on March 15, 2012 and on June 22, 2012, the Tribunal held a preliminary hearing in Thorold, Ontario, regarding that appeal. At that preliminary hearing, the Tribunal granted participant status to the City of Thorold. The preliminary hearing was continued by telephone conference call (“TCC”) on September 25, 2012 at which the parties agreed to procedural due dates for the exchange of documents prior to the hearing of that appeal.
4On September 20, 2012, the Appellants appealed the Director’s second order (Director’s Order No. 8468-8XTKD3) and issued a notice of allegation requesting that Horizon Utilities Corporation (“Horizon”) and the City of St. Catharines be included as orderees and undertake the work ordered. At the preliminary hearing for that appeal, held by TCC on November 6, 2012, the Tribunal granted participant status to the City of Thorold, Horizon and the City of St. Catharines. During that call, the parties requested that the hearing of the two appeals be combined. Pursuant to Rule 173(a) of the Tribunal’s Rules of Practice, the Tribunal directed that these two appeal proceedings be combined. The Tribunal also gave directions setting procedural due dates, and scheduled hearing dates in 2013 for this combined proceeding.
5On December 18, 2012, a further TCC was held. During the call, the Director requested, and the Tribunal ordered, an adjournment of the hearing. The Tribunal also suspended the procedural due dates. The parties then engaged in lengthy settlement discussions through mediation.
6On August 27, 2015 and October 16, 2015, the Tribunal held TCCs at which the parties advised the Tribunal that they have been unable to settle the appeals. During the October 16, 2015 TCC, they agreed to new hearing dates and a revised timetable for the appeal process. Horizon and the City of St. Catharines also indicated their intentions to bring motions to strike the notice of allegation and the parties agreed to procedural due dates and a hearing date for the motions. The Tribunal set the schedules for the proposed motions and the main hearing, as set out below, subject to any further direction from the Tribunal, as required.
ORDER
7The Tribunal confirms the following schedule:
December 4, 2015 Parties to exchange all relevant documents in their power, possession or control and to exchange document lists that indicate what documents have been added to the productions that were exchanged in the lead-up to the original 2013 hearing dates
December 11, 2015 The motion records of Horizon and the City of St. Catharines for their proposed motions to strike the notice of allegation to be filed with the Tribunal and served on the parties
January 4, 2016 Responding motion materials to be filed with the Tribunal and served on the parties
January 11, 2016 Reply motion materials (if any) from Horizon and the City of St. Catharines to be filed with the Tribunal and served on the parties
January 13, 2016 at 10 a.m. Hearing of the motions in Toronto at Hearing Rooms 12-1 and 12-2, 655 Bay Street, Toronto, Ontario
February 12, 2016 The Director’s documents to be relied on at the main hearing, witness lists, witness statements and statements of areas of proposed qualifications of expert witnesses to be filed with the Tribunal and served on the other parties
March 4, 2016 Appellants’ documents to be relied on at the main hearing, witness lists, witness statements and statements of areas of proposed qualification for expert witnesses to be filed with the Tribunal and served on the other parties
March 18, 2016 The City of St. Catharines’ and Horizon’s documents to be relied on at the main hearing, witness lists, witness statements and statements of areas of proposed qualification for expert witnesses to be filed with the Tribunal and served on the other parties (if necessary)
April 1, 2016 The Director’s and Appellants’ reply documents, supplementary witness lists, supplementary witness statements, documents to be relied on at the Hearing, and statements of areas of proposed qualification for expert witnesses to be filed with the Tribunal and served on the other parties
8The hearing will be held in the Council Chambers, City of Thorold, 3540 Schmon Parkway, Thorold, Ontario on May 2 to 3 and May 9 to 10, 2016 and in Hearing Room 2, 16th Floor, at 655 Bay Street, Toronto, Ontario on May 4 to 6 and May 11 to 13, 2016.
Procedural Directions Ordered
“Paul Muldoon” PAUL MULDOON VICE-CHAIR
“Hugh S. Wilkins” HUGH S. WILKINS MEMBER
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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