Rubin v. Ontario (Environment and Climate Change), 2016 CanLII 41682

Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: June 30, 2016

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: May 11, 26 and 27 and June 1, 2016 by telephone conference call

APPEARANCES:

Parties

Counsel

Allan Rubin, Howard Rubin, and Ronald Rubin

Julie Abouchar and Matthew Gardner

Director, Ministry of the Environment and Climate Change

Nicholas Adamson

Participant

Horizon Utilities Corporation

Hannah Arthurs

ORDER DELIVERED BY HUGH S. WILKINS

REASONS

Background

1Howard Rubin, Allan Rubin and Ronald Rubin (the “Rubins”) are brothers who were associated with Harry Rubin & Son Limited (“HRSL”), an Ontario corporation, which carried on business as a recycler of metals. The company operated its business at various times at a property located at 583 Welland Avenue, St. Catharines, Ontario and then at a property located at 1810 Allanport Road in Thorold, Ontario (the “Site”). Materials contaminated by monochlorinated and/or polychlorinated biphenyls (“PCBs”) have been stored at times at each property.

2On 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 (the “First Director’s Order”). On September 6, 2012, a subsequent order, Order No. 8468-8XTKD3, was issued against the Rubins, and others, under s. 17, 18, 132 and 196 of the EPA requiring them to, among other things, prepare, submit, and implement a plan for removal and disposal of all PCB waste and other wastes at the Site and provide financial assurance for the required work (the “Second Director’s Order”).

3The Rubins appealed the First Director’s Order on March 15, 2012. 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 (“Thorold”). The preliminary hearing was continued by a 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 the appeal.

4On September 20, 2012, the Rubins appealed the Second Director’s Order and issued a notice of allegation (the “Notice of Allegation”) requesting that Horizon Utilities Corporation (“Horizon”) and the City of St. Catharines (the “City”) 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 Thorold, Horizon and the City. During that call, pursuant to Rule 173(a) of the Tribunal’s Rules of Practice (the “Rules”), the Tribunal directed that the two appeal proceedings be combined. The Tribunal also gave directions setting procedural due dates, and scheduled hearing dates in 2013, for the 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 that they had 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. They also agreed to the scheduling of a motion to be brought by the City and Horizon to strike the Notice of Allegation. On March 22, 2016, the Tribunal heard, and, on April 26, 2016, the Tribunal granted, the City and Horizon’s motion to dismiss the Notice of Allegation.

7On February 26, 2016, the Tribunal received correspondence from Thorold withdrawing as a participant from the proceedings. On May 2, 2016, the City withdrew as a participant from the proceedings.

8On May 5, 2016, the Director sent correspondence to the Tribunal stating that the parties had reached a tentative settlement of the appeals. The Tribunal held TCCs on May 11, 26, and 27 and June 1, 2016, at which the Tribunal received submissions regarding the tentative settlement. The Parties executed Minutes of Settlement on May 27 and 28, 2016 (the “Minutes of Settlement”), which are attached as Appendix 1. The parties requested that the Minutes of Settlement be conditionally accepted by the Tribunal, which the Tribunal did, by oral Order, on June 1, 2016.

9These are the reasons for that Order.

Relevant Rules

10Environmental Protection Act

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

Environmental Review Tribunal’s Rules:

201. 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.

Issue

11The issue is whether the proposed settlement is consistent with the purpose and provisions of the EPA and in the public interest, and whether it should be conditionally accepted in light of the factors set out in Rule 201.

Discussion, Analysis and Findings

12Under Rule 201, 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 must determine whether the proposed agreement is consistent with the purpose and provisions of the EPA and whether the proposed agreement is in the public interest. It must also consider the interests of any participants and presenters. The purpose of the EPA, as set out in its s. 3, is to provide for the protection and conservation of the natural environment.

13The Parties seek the Tribunal’s conditional acceptance of a settlement which involves the withdrawal of both of the Director’s Orders as they apply to the Rubins and the issuance of a new order against them. In paragraphs 1 to 3 of the Minutes of Settlement, the Rubins agree to retain a consultant to prepare and submit to the Director a plan for the removal and disposal of the PCB and other above-ground wastes at the Site (the “proposed Plan of Work”) and to have the proposed Plan of Work reviewed and considered for approval by the Director. The Parties agree that if the Director accepts the proposed Plan of Work, she and the Rubins will jointly request the Tribunal to direct the Director to issue a new order to the Rubins requiring them to:

• ensure that all above-ground PCB and other wastes are removed from the Site and properly disposed of by June 30, 2017;

• ensure that their consultant submits to the Director a written report documenting the removal and proper disposal of all of the above-ground PCB and other wastes from the Site;

• erect a fence with a locked gate for access around the area containing the below-ground PCB wastes at the Site by June 30, 2017; and

• provide financial assurance to the Director to ensure the performance of continued monitoring and work to address the below-ground PCB waste at the Site.

14The parties agree that if the Tribunal directs the Director to issue the new order, the Director will revoke the Director’s existing Orders (as against the Rubins only), and release the Rubins from further obligations. In turn, the Rubins agree to withdraw their appeals of the Director’s Orders and forego any right to appeal the new order. The First and Second Director’s Orders would remain in effect as against Harry Rubin and Son Limited and Teni Stevens.

15The Parties seek the Tribunal’s conditional acceptance of the Minutes of Settlement in order to give the Rubins some assurance that should they go to the expense of hiring a consultant to prepare a plan of work, and the proposed Plan of Work is approved by both the Director and the Tribunal, then the First and Second Director’s Orders will be revoked as against the Rubins and the proceedings likely will be dismissed.

16The Director submits that the proposed settlement is the best available course of action for addressing the contamination at the Site and that its measures will be protective of the environment. She submits that she has investigated the Rubins’ finances and has concluded that the Rubins do not have the financial means to remove and properly dispose of both the above-ground and below-ground PCB and other wastes. The Director submits that the proposed settlement is in the public interest because:

• it will ensure the removal and disposal of the above-ground PCB wastes at the Site;

• the below-ground PCB wastes are enclosed in a cell with a geomembrane liner surrounded by clayey soils providing protection against groundwater contamination and are unlikely to pose a near-term threat to the environment;

• sampling at the Site has never detected PCBs in the groundwater;

• the posting of financial assurance will fund ongoing monitoring to ensure that the cell maintains its integrity, fund any needed repairs or security measures, and contribute to any clean-up, if necessary; and

• a Tribunal hearing in this matter would be unlikely to result in measures being taken that would be more protective of the environment than the measures contemplated under the proposed settlement.

17The Director states that the MOECC will continue to perform its role as one of the environmental regulators of the Site and, on an ongoing basis, will:

• conduct monthly Site visits to ensure that the security fence remains intact and that there is no visible disturbance of the cell;

• ensure that the groundwater wells at the Site are annually sampled and tested for PCBs and that the monitoring wells are properly maintained;

• perform annual Site inspections; and

• have a consultant test the integrity of the geomembrane liner every 20 years.

The Director states that it will draw funds from the financial assurance posted by the Rubins in order to support these measures, if needed.

18The Rubins support the Director’s submissions. They produced materials prepared by Daniel P. Bunner, a professional geoscientist and geologist, and Dr. Frank Barone, a geotechnical and geo-environmental engineer, which express the views that there has been no detected PCB contamination to groundwater at the Site and that the remaining service life of the geomembrane liner is more than one-hundred years. They both believe, in the words of Mr. Bunner, that the clayey soils surrounding the Site have “a very high absorptive capacity to impede potential contaminant migration from the cell should it ever occur”. Mr. Bunner concludes that “[g]iven the performance of the Cell liner to date, the groundwater monitoring and inspections, and the limited financial resources of the [Rubins] I am of the opinion that these proposed activities are the best solution for the property”.

19The remaining participant, Horizon, does not oppose the requested conditional acceptance of the Minutes of Settlement.

20The Tribunal finds that, provided that the proposed Plan of Work is approved by both the Director and the Tribunal, the measures set out in the Minutes of Settlement are consistent with the purpose and provisions of the EPA and in the public interest. Based on the submissions of the parties, the Tribunal finds that the measures contained in the Minutes of Settlement for the removal of the above-ground PCB and other wastes, ongoing monitoring and security measures to address the below-ground PCB wastes, and the continuing application of the First and Second Director’s Orders as against Harry Rubin and Son Limited and Teni Stevens, provide a resolution to the proceedings that protects the environment. For these reasons, and taking into account the Director’s submission that a Tribunal hearing would be unlikely to result in measures being taken that would be more protective of the environment than the measures contemplated under the proposed settlement, the Tribunal finds that the proposed settlement is in the public interest.

21Upon consideration of the factors set out in Rule 201, the Tribunal accepts the Minutes of Settlement on the condition that the proposed Plan of Work is approved by both the Director and the Tribunal. If the proposed Plan of Work is approved by both the Director and the Tribunal, a final decision will be issued by the Tribunal accepting the Minutes of Settlement and dismissing the proceedings under Rule 201.

ORDER

22The Tribunal conditionally accepts the Minutes of Settlement filed with the Tribunal pending the carrying out of the steps contemplated by paragraphs 1 to 3 of the Minutes of Settlement and the Tribunal’s review and agreement to the proposed Plan of Work.

Minutes of Settlement Conditionally Accepted

“Hugh S. Wilkins”

HUGH S. WILKINS

MEMBER

Appendix 1 – 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