Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: December 16, 2015

CASE NO(S).: 12-050, 15-135

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

Appellant: Wilfred J. Goldlust (File No. 12-050)

Appellant: Trillium Recovery Inc. (File No. 12-051)

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Order to carry out work regarding the discharge of a contaminant

Reference No.: 2362-8URQYB-1

Property Address/Description: Site 1: Part Lots 14151617 Concession 1 Site 2: 39 Manstor Road

Municipality: Site 1: Township of North Cayuga Site 2: City of Toronto

Upper Tier: Site 1: County of Haldimand

ERT Case No.: 12-050

ERT Case Name: Goldlust 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: Wilfred J. Goldlust (File No. 15-135)

Appellant: Trillium Recovery Inc. (File No. 15-136)

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Order to carry out work regarding the discharge of a contaminant

Property Address/Description: Part Lots 14151617 Concession 1

Municipality: Township of North Cayuga

Upper Tier: County of Haldimand

ERT Case No.: 15-135

ERT Case Name: Goldlust v. Ontario (Environment and Climate Change)

Heard: In writing

APPEARANCES:

Parties Counsel

Wilfred Goldlust and Trillium Recoveries Inc. Mauro Marchioni

Director, Ministry of the Environment and Climate Change Nicholas Adamson

Greenmountain Landscaping Inc. and Joe Manuel DeSousa Richard Startek

Participants

Lexie and Walter Raddick Self-represented

Helga Reiss Self-represented

ORDER DELIVERED BY DIRK VANDERBENT

REASONS

Background

1These proceedings arise as a result of an investigation by the then Ministry of the Environment, now the Ministry of the Environment and Climate Change (“MOECC”) in relation to the alleged deposit on or about February 24, 2012 of contaminated soil at a former rail line property located in the Township of North Cayuga (“Cayuga”) in the County of Haldimand (“County”). The site was formerly owned by CN Railway, and is a long, narrow strip of land approximately one kilometre long and several metres wide, that is zoned agricultural and bordered by residences and farms. It is comprised of part of Lots 14, 15, 16 and 17 in Concession 1 of the County (the “Site”).

2On June 5, 2012, Martin McConnochie, a Provincial Officer with the Hamilton District Office of the MOECC issued Order No. 2362-8URQYB (the “P.O. Order”) to Trillium Recovery Inc. and Wilfred J. Goldlust (who allegedly are responsible for sending contaminated soil to the Site), as well as the owner of the Site, 1856901 Ontario lnc. (which accepted the contaminated soil), and its sole directing officer Jovan Kresojevic, pursuant to s. 157 of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended (“EPA”). The Provincial Officer’s Report, on which the P.O. Order is based, identified several possible contraventions of the EPA relating to the deposit of waste without an environmental compliance approval and the provision of false and misleading information. The P.O. Order ordered the named parties to undertake five work items, which are summarized as follows:

• Item No. 1 (applicable only to Trillium Recovery Inc. and Mr. Goldlust) – to provide a written report summarizing the quantities of all waste soils shipped from two sites owned by Trillium Recovery Inc. in Toronto between December 1, 2011 and March 20, 2012, identifying the sites where the materials originated and where, when and how much of the materials were transferred to or deposited, and including copies of records including weigh tickets and invoices. This item was to be complied with by July 6, 2012.
• Item No. 2 – to retain the services of a licensed professional engineer with expertise in soil science and/or brownfield remediation, acceptable to the Provincial Officer. This item was to be complied with by July 6, 2012.
• Item No. 3 – to submit the credentials and qualifications of the professional engineer to the Provincial Officer. This item was to be complied with by July 6, 2012.
• Item No. 4 – the professional engineer retained by the parties to carry out an assessment of the Cayuga former rail line property to determine the locations and quantities of wastes and soils that exceed Ministry of the Environment soil guidelines. This item was to be complied with by September 14, 2012.
• Item No. 5 – to submit a completed report prepared by the professional engineer to the Provincial Officer, to include a site plan of sampling locations and water sources, a summary of all sample results, the location and volume of waste on the site, the location and volume of soils in excess of the guidelines, and true copies of all analytical results. The report was to also include a plan for removal of the waste and soils that exceed the guidelines. This item was to be completed by September 21, 2012.

3On June 11, 2012, Trillium Recovery Inc. and Wilfred J. Goldlust requested a review of the Order by the Director, in accordance with s. 157.3 of the EPA. On June 18, 2012, the Director confirmed the Order (the “Work Order”).

4On June 29, 2012, Trillium Recovery Inc. and Mr. Goldlust (the “Appellants”) jointly filed a Notice of Appeal with the Environmental Review Tribunal (the “Tribunal”) requiring a hearing respecting the Work Order. 1856901 Ontario lnc. and Mr. Kresojevic did not appeal the Work Order.

5On July 6, 2012, the Tribunal addressed a request by the Appellants for a stay of the Work Order. The parties reached an agreement regarding the disposition of the stay request, which extended compliance dates for work required in Work Item No. 1, and a stay of Work Item Nos. 4 and 5 pending the resolution of the appeal. A preliminary hearing was subsequently held on November 20, 2012, at which time the Tribunal granted participant status to Helga Reiss and Lexie and Walter Raddick, who are the owners and occupants of two neighbouring properties. The preliminary hearing was subsequently adjourned several times. At an appearance held on February 26, 2013, the Tribunal granted party status to Greenmountain Landscaping Inc. and Joe Manual DeSousa, who are former owners of the Site. The Tribunal also granted the parties’ request for Tribunal assisted mediation. For further background respecting this part of the proceedings, see the Tribunal Orders dated July 31, 2012 and April 2, 2013.

6The Tribunal appointed Vice-Chair VanderBent (the “Mediator”) to conduct the Tribunal assisted mediation which commenced on May 9, 2013, and was ongoing through the years 2014 and 2015, while the parties successfully worked to obtain a resolution of the issues raised in these proceedings.

7As will be discussed in greater detail below, in order to implement the resolution contemplated by the parties, Geoff Knapper, Director MOECC, issued an order on October 9, 2015 to Trillium Recovery Inc., Mr. Goldlust, 1856901 Ontario lnc. and Mr. Kresojevic (the “Implementation Order”). It should be noted that 1856901 Ontario lnc. continues to be the current owner of the Site.

8On October 23, 2015, Trillium Recovery Inc. and Mr. Goldlust jointly filed a Notice of appeal with the Tribunal requiring a hearing respecting the Implementation Order. 1856901 Ontario lnc. and Mr. Kresojevic did not appeal the Implementation Order. Consequently, Trillium Recovery Inc. and Mr. Goldlust are the sole Appellants in the appeals of the Work Order and the Implementation Order.

9On October 28, 2015, Mr. Goldlust and Trillium Recovery Inc. entered into a written agreement with the Director, entitled “Minutes of Settlement”. This agreement provides that, once certain work is completed (which is described below), they will request both that Work Item No. 1 of the Work Order be withdrawn, and the Appellants’ appeals of both Orders be withdrawn. On October 30, 2015, the parties filed the Minutes of Settlement with the Tribunal and submitted a request that the Mediator assume the role of adjudicator pursuant to Rule 160. Because the parties’ agreement proposes to change the Work Order by withdrawing Work Item No. 1, the parties acknowledge that Rule 201 applies, which requires that the Tribunal review the settlement in light of the applicable legislation and the public interest, before it accepts the withdrawal of the appeal and dismisses the proceedings. The parties further requested that the Tribunal provide them with provisional approval of the Minutes of Settlement, prior to the Appellants commencing the work required under the Implementation Order.

10The Mediator agreed to assume the adjudicator’s role, and granted their request for provisional approval of the Minutes of Settlement. The purpose of this Order is to provide the Tribunal’s reasons for granting this provisional approval.

Relevant Legislation and Rules

11EPA:

3(1). The purpose of this Act is to provide for the protection and conservation of the natural environment.

Rules of Practice of the Tribunal:

Settlement at Mediation

160. Where a proposed settlement, withdrawal or revocation results from a mediation, Rules 198 to 202 apply with all references to “the Tribunal” being read as “the Tribunal member who has conducted the mediation”, unless the mediator has submitted the proposed settlement, withdrawal or revocation to the panel for consideration under Rules 199 to 202.

Termination of Proceedings

199. Where there has been a proposed withdrawal of an appeal agreed to by all Parties and the decision under appeal is not altered by a settlement agreement, a proposed withdrawal of an application, or a proposed revocation of an order made under section 74 of the Ontario Water Resources Act, the Tribunal shall issue a decision dismissing the proceeding.

200. Where there has been a proposed withdrawal of an appeal as part of a settlement agreement not objected to by any Party that alters the decision under appeal, the Tribunal shall review the settlement agreement and consider whether the agreement is consistent with the purpose and provisions of the relevant legislation and whether the agreement is in the public interest. The Tribunal shall also consider the interests of Participants and Presenters. After consideration of the above factors, the Tribunal may decide to continue with the Hearing or issue a decision dismissing the proceeding.

Discussions, Analysis and Findings

12The Minutes of Settlement, executed on October 27, 2015, are attached to this Order as Appendix A. The outcome of the mediation is as follows. Although the Appellants do not acknowledge responsibility for depositing contaminated soil at the Site, they nonetheless agreed to obtain a Soil Investigation Assessment, followed by a Risk Assessment, to determine the risks associated with imported fill material at the Site. Upon completion of this work, the Appellants then further agreed to obtain and implement a Risk Management Plan to manage the risks identified in the Risk Assessment. This plan, entitled "Risk Management Plan, Former Rail Line Land Cayuga, Ontario, G2S123658", dated February 25, 2015, was prepared by a qualified person, G2S Environmental Consulting Inc., and has been reviewed and approved by the Director. The Implementation Order requires implementation of this Plan. In overview, this Risk Management Plan requires that soil on the Site be capped in order to prevent contaminant migration. It also provides for ongoing monitoring and maintenance, which includes fill cap monitoring, groundwater monitoring and record keeping. This monitoring is to be conducted as long as the contaminants of concern are present on the Site. After an initial period of five years, the MOECC will re-evaluate the duration and frequency of these monitoring activities.

13The Implementation Order requires that the Appellants commence implementation of the Risk Management Plan by October 30, 2015. The first step in implementing this Plan is to install the fill cap. The parties were anxious to proceed with this work before the winter frost set in. Also, until it was confirmed that the fill cap had been installed, the parties did not wish to proceed with termination of these appeal proceedings before the Tribunal. The Appellants, in particular, did not want to assume the expense of conducting this work without having a binding agreement, which, in the circumstances of this case includes obtaining the Tribunal’s approval of the Minutes of Settlement. For these reasons, the Tribunal agreed to provisionally provide its conditional approval of the Minutes of Settlement in light of the applicable legislation and the public interest under Rule 201. The practice of providing a provisional approval has been applied by the Tribunal in other proceedings (for example, Tembec Industries Inc. v. Ontario (Director, Ministry of the Environment) (2011) 66 C.E.L.R. (3d) 35).

14The Tribunal accepts the parties’ joint submission that the Appellants have complied with Work Item Nos. 2 through 5 of the Work Order. The Tribunal finds that the ongoing remediation work which the Appellants have undertaken and will undertake in the future is consistent with the purpose and provisions of the EPA and the public interest. The Tribunal also notes that, once the Settlement Agreement has been accepted by the Tribunal, the Appellants are prepared to withdraw their appeals respecting the Implementation Order without any alteration to this Order, which adds assurance that the Risk Management Plan will be implemented. The Tribunal, therefore, approves these aspects of the Minutes of Settlement. Consequently, the proposed withdrawal of Work Item No. 1 of the Work Order is the only remaining matter to be addressed by the Tribunal.

15In overview, Work Item No. 1 requires production of records regarding waste soil shipments from two sites owned by Trillium Recovery. As the recitals in the Minutes of Settlement indicate, the Appellants take the position that they have complied with Work Item No. 1 to the best of their abilities by having submitted all of the relevant documents in their possession to the Director. The Director takes the position that the Appellants have not fully complied with Work Item No. 1. However, the parties agree that, in relation to the shipment of soils to the Site described in the initial P.O. Order, it is unnecessary to pursue Work Item No. 1, as the Risk Management Plan approved by the Director will be implemented. As such, the parties agree that it is unnecessary for the Tribunal to adjudicate their dispute as to whether the Appellants have fully complied with Work Item No. 1. As noted in the Minutes of Settlement, the parties agree that revoking Work Item No. 1 is in the public interest. The Tribunal agrees. For purposes of clarification, the requirement for production of waste soil shipment records is resolved as it relates to the deposit of waste soils at the Site as alleged in the P.O. Order. Should different allegations arise in the future regarding the Site or other locations, the MOECC and the Appellants may have to address requirements for record production at that time.

16The Tribunal notes that the parties do not propose any alteration to the Implementation Order. Therefore, at such time as the parties submit their request to withdraw their appeal, the appeal would be dismissed in accordance with Rule 199.

ORDER

17The Tribunal conditionally accepts the Minutes of Settlement executed on October 17, 2015 pending receipt of confirmation that the fill cap has been installed in compliance with the requirements of the Implementation Order.

18Upon confirmation that the fill cap has been installed in compliance with the requirements of the Implementation Order and upon receipt of a joint request of the parties to terminate these proceedings, the Tribunal will issue a decision that will:

a. amend the Work Order by revoking Work Item No. 1, accept the Appellants’ withdrawal of their appeal respecting the Work Order, and otherwise dismiss their appeal; and

b. accept the Appellants’ withdrawal of their appeal respecting the Implementation Order, and dismiss their appeal.

Settlement Agreement Conditionally Accepted

“Dirk VanderBent”

DIRK VANDERBENT VICE-CHAIR

Appendix A – Minutes of Settlement

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 A Minutes of Settlement