Goldy Metals Incorporated v. Ontario (Environment and Climate Change), 2017 CanLII 27498

Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: May 3, 2017

CASE NO.: 13-068

PROCEEDING COMMENCED UNDER section 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40, as amended

Appellant: Goldy Metals Incorporated

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Order to carry out work with respect to the discharge of contaminants associated with the operation of an auto wrecking business

Reference No.: 6363-94MJT9-1

Property Address/Description: 1216 Sewells Road

Municipality: City of Toronto

ERT Case No.: 13-068

ERT Case Name: Goldy Metals Incorporated v. Ontario (Environment and Climate Change)

Heard: September 16, 2013 in Toronto, Ontario and October 28 and December 5, 2013; January 30, April 1, May 15, June 17, September 3, October 22, November 26 and December 11, 2014; February 3, March 26, May 11, September 16 and December 8, 2015; February 10, March 24, May 5, May 26, September 29 and December 1, 2016; and February 21, 2017 by telephone conference call

APPEARANCES:

Parties Goldy Metals Incorporated Counsel Harry Poch

Parties Ministry of Environment and Climate Change Counsel Sarah A. Kromkamp, Norman S. Rankin, Philip Pothen, Jon Bradbury and Justin Jacob

Participant Toronto and Region Conservation Authority Counsel Jacquelyn Stevens and Robert Woon

ORDER DELIVERED BY ALAN D. LEVY

REASONS

1The preliminary hearing in this appeal to the Environmental Review Tribunal (“Tribunal”) commenced more than three years ago and has been continuing since then in the form of 22 status updates convened by telephone conference call (“TCC”). Moreover, additional status updates are anticipated throughout the balance of 2017. This order records the protracted course of events that has unfolded to date, and explains the reasons for the delays which have occurred along the way.

Background

2The Appellant, Goldy Metals Incorporated, operates an automobile recycling business under the name Standard Auto Wreckers (“SAW”) at 1216 Sewells Road (the “Site”), a 4.3 hectare property located in the north-east part of Toronto, formerly known as Scarborough.

3On or about November 19, 2010, a spill of petroleum contaminants from the Appellant’s operations entered the Little Rouge Creek (the “Creek”) which flows through a flood plain intersecting the Site. This resulted in the issuance of a report and order to the Appellant by Jake Shaw, a Provincial Officer in the Ministry of the Environment (“MOE”) on May 3, 2013. The Ministry has since been renamed the Ministry of the Environment and Climate Change.

4Officer Shaw’s Report (“P.O. Report”) describes the Site as follows:

The Site is located to the east of land owned by Her Majesty the Queen in right of Ontario and managed by [Ontario Infrastructure and Lands Corporation] OILC (neighbouring impacted property). The land owned by the Province acts as a flood plain and the Little Rouge Creek flows through the flood plain property and intersects the Site. The Little Rouge Creek flows through the property west and south of the Site with flow to the south east towards lands managed by the Toronto Region Conservation Authority. The Little Rouge Creek is a complex ecosystem which supports a diverse fish habitat and population.

…A number of buildings are located in the north-east/central portion of the Site and there was a building used for engine removal and storage located along the south-western perimeter fence of the Site. (p.3)

5Additional information about the source of the spill is found in a Tribunal decision by Vice-Chair Robert V. Wright issued on June 29, 2011: Goldy Metals Inc. v. Ontario (Ministry of the Environment), [2011] O.E.R.T.D. No. 28, (Tribunal case no. 10-130). The following is an excerpt from para. 2 of that decision:

The discharge appears to have originated from a structure located near the east bank of the Little Rouge Creek that Goldy Metals used for removing and temporarily storing drive-trains, including engine blocks, from the motor vehicles. … In the structure, a central liquid collection trench collects fluids as they drain from the vehicles. … The discharge flowed at least 300 metres downstream.

6Minutes of Settlement are attached as Appendix A to that decision. It includes a set of agreed facts which stated as follows (para. 5):

Goldy Metals had constructed this roofed structure out of used intermodal shipping containers, stacked on top of each other to form three walls around a concrete floor pad in which a central liquid collection trench was located. This floor trench was intended to collect residual motor vehicle fluids that drained from the vehicles while they were temporarily stored on the floor pad and before the drive-trains were lifted out of the vehicles.

7The above noted P.O. Report detailed chronologically events which occurred after the spill, including the following:

• A Provincial Officer’s Order (No. 004585) was issued, followed by a Director’s Order (No. 004585-1) on December 15, 2010 (“DO-1”).

• DO-1 required the Appellant to conduct subsurface investigations in order to delineate the vertical and horizontal extent of contamination, and submit a work plan arising out of those investigations.

• A portion of the Creek was diverted on January 5, 2011, in order to prevent the spill from continuing to discharge into the Creek. Sampling of sediment in the abandoned section of the Creek revealed “elevated concentrations of contaminants including BTEX [benzene, toluene, ethylbenzene and xylene], PHC [petroleum hydrocarbons] and Metals exceeding Ministry soil condition standards” (P.O. Report p. 6).

• DO-1 was appealed to the Tribunal, resulting in a settlement which was confirmed by the above-noted decision of Vice-Chair Wright.

• Subsequently, a Provincial Officer’s Order (No. 5167-8F3KE3) was issued by Officer Shaw, followed by another Director’s Order (No. 5167-8F3KE3-1) on April 8, 2011 (“DO-2”).

• DO-2 required the Appellant to conduct subsurface work and submit a remedial work plan including recommendations for restoration services.

• The Appellant’s environmental consultant at that time (NovaTox) subsequently prepared an Ecological Risk Assessment and Sediment Management Plan (“ERA”), the final version of which is dated August 13, 2012.

8The P.O. Report (at p. 4-5) provided the following summary of the ERA’s conclusions:

The ERA report concludes that the concentrations of PHCs and various PAHs [poly aromatic hydrocarbons] and several metals are present in sediment in concentrations that may pose a risk to benthic invertebrates. However, risks from contaminated sediments to other aquatic receptors such as aquatic plants, amphibians and fish and to terrestrial receptors was determined to be likely negligible.

The proposed remedial approach for dealing with the contamination within the creek and associated flood plain is natural attenuation, meaning leaving the contaminated sediments in place to be buried naturally by cleaner sediments over time. The ERA concludes that natural attenuation is the preferred remedial approach over alternative remedial approaches involving highly destructive activities, such as excavation, which are likely to result in severely compromised or destroyed ecological habitat.

The remedial approach for dealing with the diverted portion of the Little Rouge Creek identified in the ERA is to have the creek remain in the current diverted location as permanent and add a layer of clean soil material over existing sediments in the abandoned section of the creek and indicates that it may be appropriate to permanently in-fill the abandoned section of the creek with clean soil to eliminate the potential for exposures to contaminants.

9Proposed containment measures to prevent any further release of contaminants were provided in Appendix C of the ERA, and include installation of a durable geomembrane liner 0.8 metres below surface along the western boundary of the Site. Officer Shaw concluded that “a properly designed and constructed stormwater/surface water management system” is required (p. 5 of P.O. Report).

10The ERA’s recommendation that the abandoned section of the Creek be infilled or capped with clean soil would require a number of approvals (P.O. Report p. 6):

The approval to do this would need to be given by the Federal Department of Fisheries and Oceans who have given instruction for Toronto and Region Conservation Authority to act on their behalf for this matter. It is my understanding that in order for the approval to be given for the creek diversion to remain in its current location permanently the application would need to be submitted with the remedial plan and would need to include plans for habitat compensation.

11With respect to the choice of infill versus capping, Officer Shaw’s Report identified the Ministry’s view in the following excerpt from his Report (p. 6):

The Ministry finds the remedial approach involving the infilling of the abandoned section of the Little Rouge Creek to be the preferred remedial approach as it will provide a greater protection from contamination within the sediment. Capping the contaminated sediment and allowing standing water to pool in the abandoned section of the creek does not eliminate the potential for contamination to be released to the Little Rouge Creek. During high water events water overflows the banks of the Little Rouge Creek and floods the area causing the standing water within the abandoned section to be released to the Little Rouge Creek. Contamination within the abandoned section of the creek would most likely not be completely isolated by only capping the bottom sediments. Not infilling the abandoned section of the creek increases the potential that the soil plugs isolating the abandoned section of the creek may be eroded during high water events increasing potential of exposure to the contaminated sediments within the abandoned section of the creek.

12After receipt of a Request for Review submitted on behalf of the Appellant on May 8, 2013, the May 2013 Provincial Officer’s Order was ultimately replaced by an order issued by Rod Adams, a Director at the MOE, on June 7, 2013. Mr. Adams has retired from the MOE since that time. This Director’s Order, No. 6363-94MJT9-1 (“DO-3”), the third in a series of Director’s Order related to this spill, required the Appellant to take the following steps:

• work item 1: by June 21, 2013, retain a qualified professional to design a storm water management system (“SWMS”) for the Site;

• work item 2: by the same date confirm this retainer with MOE;

• work item 3: by September 6, 2013, apply to the MOE’s Approvals Branch for an environmental compliance approval (“ECA”) to construct and operate the SWMS;

• work item 4: by the same date submit a copy of the ECA application to the Provincial Officer;

• work item 5: by July 1, 2013, commence work to permanently secure the abandoned section of the Creek and submit to MOE monthly status reports on related actions taken the previous month; and

• work item 6: by the same date implement a sediment monitoring plan for the Creek to measure sedimentation rates.

13In DO-3, the Director identified the following amendments he made to the Provincial Officer’s Order with respect to the SWMS (p. 3):

The stormwater management system shall be designed in a manner that contains the stormwater for treatment and/or removal and prevents any potential impacts to ground water under and off the Site as a result of the activities at the Site and prevents any impacts to the soils, ground water and surface water in the low lying areas depicted by the hatch marks in the attached figure, whether on the Site or off the Site. …

It is noted that Appendix C of the ERA is based on a 24 hour storm return period of five years. There will need to be detailed justification in the documentation required by item iii) above as to why a five year return period, or other design, is appropriate (as opposed to a 100 year return period). The rationale for the storm return period should satisfy the Toronto Region Conservation Authority requirements.

14On June 20, 2013, the Appellant, through its counsel Harry Poch, appealed to the Tribunal from work items 1, 3 and 4. The preliminary hearing for this appeal commenced on September 16, 2013, at 655 Bay Street in Toronto. Former Tribunal member John Lang was part of the hearing panel for the opening of the preliminary hearing on this date, and for the TCCs which followed on October 28 and December 5, 2013.

15No application has been made thus far in the pre-hearing process for a stay of any portion of DO-3 pending hearing.

Issue

16The Tribunal’s ruling on the request for participant status by the Toronto and Region Conservation Authority (“TRCA”), as well as a description of the issues, positions and events which have arisen during the pre-hearing process to date, are discussed synoptically below and in Appendix A to this decision.

Discussion

17The opening of the preliminary hearing on September 16, 2013 was attended by Mr. Poch, counsel and staff members of the TRCA, counsel for the Director and Officer Shaw, counsel for Infrastructure Ontario and one of its staff members.

18Participant status was requested by Jacquelyn Stevens on behalf of her client, the TRCA, pursuant to Rule 66 of the Tribunal’s Rules of Practice (“Rules”). Her pre-filed written submission dated September 11, 2013, identified the TRCA’s interest in this appeal and included, among other things, the following factors:

• TRCA’s mandate includes protection and restoration of the environment in the Rouge River watershed which includes the Creek.

• Rouge Park is almost 50 square kilometres in size and “one of TRCA’s most significant land holdings.”

• TRCA is “an immediate downstream property owner” and a regulator of the Site. “All works undertaken on private property within TRCA’s regulated areas must be done in accordance with Ontario Regulation 166/06.”

• It has an “historic and ongoing involvement” with the Site and SAW. For example, it previously issued a Notice of Violation with respect to the shipping containers at the Site in which vehicle engines were stored, and from which fuel oil had escaped and caused the spill.

• TRCA must ensure remediation of the Site, the Creek and TRCA’s property. It is concerned about contaminant impacts migrating from the Site onto its property.

• Proper design of a SWMS for the Site is essential for the protection of the Rouge Park.

• TRCA will be substantially affected by the outcome of the appeal.

• Ontario Realty Corporation (part of Infrastructure Ontario) has been discussing transfer to TRCA of its land located immediately west of the Site in order to incorporate it into the Rouge Park. Before that can happen, TRCA must be satisfied with the environmental condition of that land.

• TRCA became actively involved after the spill occurred and “has been part of the process to determine an appropriate response to the off-site migration of contamination.” It has also assisted the Appellant “in obtaining necessary approvals to undertake the temporary channel diversion that was required as an immediate measure and providing comments on proposed delineation and remedial actions.”

19The Appellant objected to the TRCA’s request for participant status on the basis that the scope of the concerns identified in its written submission go much beyond the issues raised by the appeal. While not objecting to the request for participant status, Sarah Kromkamp, counsel for the Director, agreed with the Appellant’s concern about the broad scope of the TRCA’s list of issues.

20The Tribunal indicated that scoping of issues is an important part of the pre-hearing process, and the preliminary hearing is just the beginning of that process. The Tribunal found that the TRCA’s interest is totally compatible with the subject matter of this appeal and the requirements of Rule 66. Accordingly, participant status was granted to the TRCA during the preliminary hearing.

21Counsel advised that active and fruitful discussions were ongoing amongst the parties with a view to resolving the issues under appeal, and they had scheduled another private meeting for that purpose. In the meantime, counsel advised that the parties had been cooperating with respect to disclosure and sharing of documents. Mr. Poch indicated that counsel did not require Tribunal-assisted mediation at this stage in their negotiations.

22Anne Walters, counsel for Infrastructure Ontario, advised that her agency wished to attend throughout the hearing process as an observer. Indeed, at least one representative from that organization has attended most of the series of TCCs which followed after the opening of the preliminary hearing. Those attending on behalf of Infrastructure Ontario include Khadijo Mahmood (in-house counsel), Imshun Je and Erica Anderson (environmental specialist). In August 2015 Ms. Je ceased to be involved in this matter.

23The parties requested adjournment of the preliminary hearing to a status update on October 28, 2013, via TCC. This in turn led to a series of consent adjournments and periodic status updates in order to report on progress, or lack thereof, in carrying out work required by DO-3. For many of these updates Mr. Poch would circulate in advance a summary of steps which had been taken since the previous TCC. He also had one of SAW’s environmental consultants, Drew Stoltz, attend most of the TCCs to assist with information, where required. It appears that Mr. Stoltz, a hydrogeologist with MBN Environmental Engineering, is the Appellant’s principal consultant.

24During most of the TCCs one or more members of the TRCA’s staff attended and participated along with counsel, Ms. Stevens, including Beth Williston (senior manager), John Pounder (environmental planner) and Daniel Brent (planner).

25Additional TCCs were held on December 5, 2013; January 30, April 1, May 15, June 17, September 3, October 22, November 26 and December 11, 2014; February 3, March 26, May 11, September 16 and December 8, 2015; February 10, March 24, May 5, May 26, September 29 and December 1, 2016; and February 21, 2017.

26In total, 22 TCCs were held during the years 2013 through 2017. In order to provide more transparency with respect to the prehearing process thus far, my summary of the information and events disclosed during each of these status updates is contained in Appendix A to this order. By way of overview, the parties have continued to work collaboratively with respect to information sharing and ongoing negotiations. Although some frustrations, problems and difficulties have been encountered along the way, no request for Tribunal-assisted mediation has been made to date.

27It appears that the most significant problem from the perspective of the Director and the TRCA has been the very slow pace of progress in developing a comprehensive plan for the SWMS.

28I recognize that the Appellant has been working with and coordinating a group of several different consultants and sub-consultants, and had to replace an important member of that team early on due to illness and accident injuries. SAW’s counsel was also off work for a time. In addition, a massive fire at the Site, which occurred on March 3, 2014, caused a delay of many months. Some, if not much, of the preparatory consulting work which had been done to develop the SWMS and ECA application had to be redone as the Site had been altered by fall-out from the fire. A large part of the company’s work force was laid off indefinitely, and the Appellant likely suffered substantial financial business losses due to fire damage and business disruption. It also had to incur the cost of additional consulting work due to alteration of the Site and SAW’s business operations.

29That said, Mr. Poch has submitted repeatedly that the Appellant has not been attempting to delay the process. Nor have the other parties alleged that the Appellant has under-resourced its team of consultants. However, the other parties have suggested that the Appellant’s consultants are proceeding very inefficiently. It is understood that the MOE and the TRCA each have their own separate processes, standards and approaches. Approvals from both of them are required before a shovel can go into the ground. Instead of working with both agencies simultaneously in a coordinated fashion, their counsel have suggested from time to time that the Appellant has preferred to deal with their clients separately, one at a time. Rather than offering up information and reports to the MOE and the TRCA as quickly as possible and as soon as they become available, their counsel indicated that the Appellant has sometimes held back on circulation until a collection of reports and documents had accumulated. Counsel for the MOE and the TRCA maintained that this slowed down the process. Mr. Poch submitted that although this approach was efficient from the Appellant’s perspective, it has been changed to accommodate the other parties.

30In the meantime, the Appellant has also been responding to the parts of DO-3 which were not appealed, namely to:

• permanently secure the abandoned section of the Creek, the part which was most impacted by the oil spill (work item 5),

• report monthly to the MOE regarding Creek-related activities (work item 5) and

• develop and implement a sediment monitoring plan (work item 6).

31Mr. Poch has stated from time to time that the continuing effort to comply with all aspects of DO-3 has been very expensive for the Appellant.

32The long delay in finalizing and constructing the SWMS has also mired the staff and counsel of the MOE and the TRCA in a very time-consuming appeal process. In addition, both agencies have expressed concern about the negative impact on the public interest resulting from the delay. An automobile wrecking yard is by its nature a dirty operation, and this Site is located amongst some undeveloped public lands and vulnerable waterways. Until an effective SWMS is in place at the Site, the escape of automobile-related contaminants through surface water run-off and/or ground water migration, and the risk of more oil spills in the future, pose a continuing threat to the natural environment.

33Moreover, the proposed enlargement of the Rouge Park by adding the public lands (currently managed by Infrastructure Ontario) located to the west of Site, has been delayed pending the resolution of contamination problems at the Site and potential off-site impacts.

34Guarded confidence was beginning to develop as a result of progress reported during the last couple of TCCs, namely that the Appellants’ consultants, in collaboration with the other parties’ technical advisors, were closing in on the 100% design stage for the SWMS. It was hoped that the SWMS and ECA could be finalized by this summer and construction of the SWMS would commence in September of this year.

35Unfortunately, it now appears that disaster has struck once again. Mr. Poch recently advised the Tribunal and other counsel by email that a five-alarm fire occurred at the Site on April 6, 2017. Fortunately, MOE staff were on hand quickly to assist but there is no news of the extent of the damage. He indicated that an update would be provided at the upcoming TCC.

ORDER

36The preliminary hearing (now called pre-hearing conference) is adjourned to a telephone conference call scheduled on consent for Tuesday, April 18, 2017, commencing at 4 pm.

Participant Status Granted

Preliminary Hearing Adjourned

Appendix A - Summary of Status Updates during 2013 - 2017

“Alan D. Levy”

ALAN D. LEVY

MEMBER

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

Summary of Status Updates during 2013-2017

22 telephone conference calls were conducted on the following dates: October 28 and December 5, 2013; January 30, April 1, May 15, June 17, September 3, October 22, November 26 and December 11, 2014; February 3, March 26, May 11, September 16 and, December 8, 2015; February 10, March 24, May 5, May 26, September 29 and December 1, 2016; and February 21, 2017.

2013

1. October 28, 2013:

Technical staff of MOE and Appellant’s consultants met the previous week as well as in early September. A conceptual plan for the SWMS was presented. Another joint technical meeting is scheduled for November at the offices of TRCA and would include staff members from that agency.

2. December 5, 2013:

Continuing discussions have included identification of steps to be followed leading up to completion of the Appellant’s application to MOE for an ECA to construct and operate the SWMS. Ms. Kromkamp expressed concern about delays and the slow pace of progress with negotiations, and hoped to have a concrete schedule developed by the next status call.

2014

3. January 30, 2014:

Mr. Poch advised that the agreed upon work schedule had been affected by extremely cold weather and an ice storm. The Appellant was suddenly faced with replacing one of its consultants involved with ground water and modelling, as he had become very ill recently and was also injured in a recent automobile collision. The target for submitting the ECA application must now be delayed from end of March to mid-May. Ms. Kromkamp indicated that the Director wants periodic updates from the Appellant on progress benchmarks, and expects construction of the SWMS to begin by the summer.

4. April 1, 2014:

Mr. Poch reported that sedimentation study work had proceeded in accordance with work item 6 of DO-3. Access negotiations were continuing with respect to the work required to fill in the abandoned creek area (work item 5). Monthly reporting to Officer Shaw regarding the previous month’s activity was occurring on schedule (work item 5). Modelling of the existing conditions of the floodplain and the geotechnical investigation had been completed. Some on-site inspections were undertaken with respect to location of catch basins, limits for corresponding catchment areas and outfall locations, although severe weather has delayed this effort. More inspections will be scheduled weather permitting.

A massive, four-alarm fire occurred on March 3, 2014 destroying the northern third of the Site’s facilities. The cause of the fire was unknown and the Fire Marshall’s office was investigating. The permanent lay-off of 50 of the Appellant’s 120 workers has occurred as a result. Surficial features at the Site have been altered when buildings, equipment and materials were razed and heavy equipment such as graders removed some of the ground surface in the area which had burned.

This damage has negated much of the previous planning which had been conducted for the development of the SWMS. The Appellant will require another 4-5 months to make decisions as to whether to rebuild or shut down operations at the Site altogether. Substantial additional time will be required beyond that point if rebuilding is contemplated. Work on the SWMS has been suspended in the interim. Mr. Poch estimated that progress with the SWMS and ECA application has been set back by at least seven months as a result of the fire.

5. May 15, 2014:

In advance of this TCC Mr. Poch circulated a detailed, technical, progress update prepared by the Appellant’s lead consultant, Mr. Stoltz. Mr. Poch advised that a new, alternative conceptual approach for the SWMS had been presented to MOE staff in April and they have responded with comments. Work was proceeding on ECA pre-submission steps such as modelling. Submission of the ECA application to the MOE Approvals Branch is not expected before late August. Having regard for some delay due to summer vacation, the consultants were working toward submission by August 22. No decision has been made yet with respect to rebuilding facilities at the Site. Another meeting of technical advisors and staff is planned for early June.

Ms. Kromkamp maintained that the ongoing work by the Appellant to comply with DO-3 could be done faster if the various tasks were undertaken concurrently rather than consecutively (i.e., one at a time). She complained that the Appellant’s time estimates were even longer than those made previously. MOE staff want to see more than just conceptual work from the Appellant’s consultants, such as a partial draft of the ECA application. The Director wants the ECA to be submitted before August and proposed a target of July 22. This would enable the post-submission process (e.g., MOE engineering review, changes, Environmental Bill of Rights (“EBR”) Registry posting, etc.) to occur in time for construction of the SWMS to be undertaken before the arrival of winter.

Ms. Stevens advised that TRCA wants a faster process, and more input into assessing some of the components being planned for the SWMS. The parties agreed with my suggestion that a meeting of technical staff and advisors be convened at the beginning of June so that MOE staff can help find ways of expediting the process.

6. June 17, 2014:

A fruitful meeting of the parties’ technical advisors and staff was held at MOE offices on June 13 to review and discuss the Appellant’s conceptual storm water management proposal. A detailed summary from the meeting, prepared by Mr. Stoltz, was circulated prior to this TCC. It confirmed that all sides had agreed that construction was likely in the Spring of 2015. Physical work on the abandoned portion of the Creek was delayed due to outstanding access agreements, such that it would not be completed until the Fall. Ms. Kromkamp advised that MOE staff did not agree to the current timetable for ECA submission and SWMS construction, although they understood the basis for it and thought it was a reasonable estimate. She also cautioned that the compliance deadlines in DO-3 had expired long ago and no stay has been requested or granted.

7. September 3, 2014:

Mr. Poch advised that the Appellant would not be reconstructing buildings destroyed in the fire on the northern portion of the Site. However, the company’s business operations will be continuing on this property. The municipality had been studying vehicular parking on Sewells Road with a view to changing the rules. SAW had previously submitted that this would limit street parking and require much more on-site parking. In turn, this would significantly alter the use of the Site and undermine planning for the SWMS. Mr. Poch advised that this concern has now been alleviated as the City is no longer proceeding with this program at this time.

The submission of the ECA application has not yet occurred as had been planned. This was due to a delay in undertaking the requisite geophysical analysis (slope stability testing) resulting from a business problem. Hundreds of derelict, crushed motor vehicle hulks were stacked throughout the Site awaiting shipment, and covering locations where slope testing must occur. The exceptional volume of hulks accumulating at the Site was due to the Appellant’s inability to ship them away as scrap – its major third party receiver (Gerdau) had stopped accepting further deliveries of hulks. Mr. Stoltz advised that hulks were stacked ten high in rows that were twenty deep. This problem has since resolved, and testing will begin very soon.

The new estimate for completing and submitting the ECA application is November 21, 2014. It will be difficult to move this timing forward to the end of October due to the scheduled absence during that month of Robert Clipsham (Fiddes Clipsham), the Appellant’s storm water engineer and surveyor. However, the anticipated timing of construction of the storm water management works continues to be Spring 2015. Ms. Kromkamp submitted that the Director was not consenting to this delay in the submission of the ECA application. Officer Shaw had been surprised to learn of the delay and did not believe it was caused by the volume of hulks on-site. Mr. Poch submitted that there was no benefit to the Appellant in accumulating hulks on-site, as retention of them had caused a substantial loss in revenue for SAW.

8. October 22, 2014:

Work was progressing on schedule to meet the November 21 target for filing the ECA application with MOE Approvals Branch. Ms. Kromkamp requested that the target date be moved up but Mr. Poch submitted that this was not possible. I asked counsel to consider what, if any, additional steps would be required in the appeal process, and would an order by the Tribunal be needed after the ECA application has been filed.

9. November 26, 2014:

Mr. Poch confirmed that the ECA application had been submitted to the MOE Approvals Branch and Officer Shaw on November 21. Counsel discussed next steps before the appeal proceeding can be terminated, and the issue of TRCA’s demand for payment of its review/processing fees by Appellant at this stage in the process.

10. December 11, 2014:

Mr. Poch advised that the Ministry’s review of the ECA application has been expedited, but completion of the review is not expected until February 3, 2015. Counsel agreed to attempt to resolve the issue of TRCA review fees without intervention by the Tribunal.

2015

11. February 3, 2015:

Some of the Appellant’s consultants met on January 28 with MOE reviewers to discuss technical issues. Further discussions and possible amendments to the application were anticipated. TRCA staff were nearing the end of their review of the application and suggested another meeting with the Appellant’s consultants. The issue of TRCA review fees was still under discussion.

12. March 26, 2015:

After the Appellant’s consultants finish reviewing extensive comments received from TRCA and MOE technical staff, a meeting of all parties’ technical advisors will be convened without counsel. The two largest issues to emerge are storm water outfalls and slope stability. The creation of many more plans was requested by MOE. There was some delay due to an advisor’s absence on vacation. The next meeting of technical advisors will determine the level of concurrence or disagreement regarding what may be needed next with respect to the ECA application.

Ravine staff from the City contacted the Appellant’s advisors indicating that a City permit will be required with respect to ravine protection. Mr. Poch undertook to look into this new inquiry, and TRCA agreed to invite City staff to the next technical meeting. Ms. Kromkamp urged the parties to proceed as expeditiously as possible. Beth Williston, TRCA senior manager, requested that multiple copies of reports and documents be provided by the Appellant’s consultants so that review time can be saved.

13. May 11, 2015:

TRCA technical staff met with the Appellant’s storm water management design engineer (Mr. Clipsham) on April 21 with more feedback still to come. If consensus is reached with TRCA, the Appellant will need 10-12 weeks to compile the 30% design package requested by TRCA. This package will include only partial details for the purpose of obtaining incremental approval and then building on that with more details to move forward towards a 90% or 100% design package. Mr. Stoltz advised that this has become a more complex project, and additional sub-consultants are now needed by the Appellant to assist with a tree inventory, slope stabilization design features, etc. Ms. Kromkamp inquired as to how long it would take to develop the final design. My understanding of the answer was that it will take another 3-6 months to allow for design work and TRCA reviews. It appears that this stage of the process continues to involve primarily the work of the Appellant and TRCA, as the Appellant’s obligations to MOE under DO-3 have been substantially fulfilled.

14. September 16, 2015:

Mr. Poch reported that the requirements of the preliminary storm water management plan civil works, including such things as conveyance swale location and pond/outfall locations) have been previously approved by MOE. Sub-consultants were retained by the Appellant to assist with development of the 30% design submittal to TRCA, which had been completed the previous day. They have also been working on various studies which have been required by TRCA (e.g., arborist report by Aboud & Associates, vegetation communities plan, restoration and compensation plan, and geomorphic assessment by Matrix Solutions Inc., formerly Parish Aquatic Services). Slope stability issues were included in the 30% design submittal.

TRCA has approved the plan for rehabilitation of the Creek, but access requirements are still forthcoming from OILC. Ms. Stevens advised once again that multiple copies of reports and documents are needed to save time. Ms. Kromkamp confirmed that most of the material received from Appellant’s consultants is focused on issues involving TRCA, not MOE.

15. December 8, 2015:

Mr. Poch advised that the parties’ technical advisors would be meeting in January to sort out the remaining issues raised by TRCA in response to the ECA application. Counsel assured me that this relates to one of the work items under appeal. They advised that the ECA application directs that all required permits be received. A TRCA permit is one of those which are required. Submissions were received from TRCA staff on November 25. Ms. Stevens and Ms. Kromkamp both indicated that their clients expect construction of the SWMS to be undertaken in 2016.

2016

16. February 10, 2016:

Technical advisors of the Appellant and TRCA met again on January 26 to discuss reviews, comments and disagreements arising after the 30% design submission. The outcome was productive and another technical meeting is scheduled for May 3. Mr. Poch advised that remaining steps include completing the 100% design, obtaining all necessary permits and approvals, tendering and negotiating construction contracts, and scheduling the work to coincide with appropriate natural habitat windows of opportunity. Under the circumstances, he indicated that construction was unlikely before 2017.

Ms. Kromkamp questioned why the technical advisors were not planning to meet until May 3, in view of the fact that construction season will open in two months, DO-3 was issued in 2013 and the ECA application for the SWMS was submitted in 2014. Mr. Stoltz responded that developing the 90% design plan will take a long time, and consultants are now working toward being in a position to discuss development of a 50% design plan at their meeting in May. He also pointed out that at the end of the approval process the construction bidding process must occur, requiring 6-8 weeks, and adequate insurance must be secured.

TRCA’s Ms. Williston responded that the reason for not meeting before May 3 was Mr. Stoltz’s request that another two months is needed by his team. Mr. Stoltz indicated that the construction phase would last about two months (his guess). Ms. Williston indicated that construction season would begin around September 15 and remain open until the end of the following June. TRCA’s Mr. Brent gave his opinion that the window for construction would open on/after July 1 and close by March 31 of the following year. I inquired whether the process can be speeded up and the May 3 meeting held earlier. Mr. Stoltz responded that this would depend on whether the sub-consultants could deliver their work more quickly.

17. March 24, 2016:

Mr. Poch advised that revised 30% Design Report Drawings would be ready in time for the May 3 meeting. He is hoping they will be delivered to Ms. Stevens by mid-April. These revisions would reflect several of the matters discussed at the technical meeting on January 26. Once again, Ms. Kromkamp questioned the additional delay that has occurred since previous TCCs. Mr. Stoltz indicated that if TRCA will provide its ‘buy-in’ (approval) at the May 3 technical meeting, then his team can begin to push ahead with work on the 50%, 90% and 100% design plan, the latter occurring by late Fall. The process of obtaining the required permit from TRCA was also discussed. The TRCA board meets monthly and once it approves the permit, the ECA application now pending with MOE can be finalized (that alone will take a month). The step after that is EBR Registry posting.

Mr. Stoltz now predicts that construction will take at least three months and is likely to start in July 2017. Mr. Brent referred to the issue of migratory birds (fly-back patterns) and fish spawning in the Spring. He felt that some aspects of preparatory construction in areas away from the water, such as tree removal, could be permissible before July 1, 2017. Mr. Stoltz was firm in his prediction that construction can be completed by the end of 2017 and most definitely before the end of the construction window on March 31, 2018.

18. May 5, 2016:

The parties reported on the outcome of the technical meeting held on May 3 and issues such as the location of the long term stable slope line, toe erosion allowance, proposed bank stabilization measures, vegetated rip rap for bank hardening, restoration planting (terra seeding v. hydroseeding), granular filter at outfalls, and location of northern outfall discharge location. Sufficient agreement was reached that focus can shift to discussing work on the 50% design report, and the steps needed to develop it. The projected time line for completing the 50% design stage was uncertain at this point, but estimated to be at least three months. Mr. Poch suggested that when the 50% design work is completed and submitted, it should be copied to MOE as well, in addition to TRCA, in order to get MOE staff working on their review and comments simultaneously with TRCA staff.

19. May 26, 2016:

Mr. Poch circulated in advance a timetable prepared by Mr. Stoltz with ten steps to be taken in the technical process leading to submission of the 50% design report to MOE and TRCA in mid-September. Ms. Kromkamp requested that this stage of the work be done as expeditiously as possible. Mr. Poch maintained that this work plan was more than expeditious, but nevertheless doable. Ms. Stevens requested that a progress report be circulated by Mr. Poch by email in late July, confirming completion of the fourth step in the timetable. This step deals with revision of civil works design and drawings (involving such things as storm water ponds/outfalls, conveyance swales, etc.) prepared after completion of geotechnical slope stability analysis, floodline study and a restoration plan with planting details. All agreed that if necessary, a TCC during the summer could be requested by any of the parties on short notice.

20. September 29, 2016:

The day before this TCC Mr. Poch circulated a draft of the “Stormwater Management Plan – 50% Design Report” (September 28, 2016) prepared by MBM Environmental Engineering Inc. & Fiddes Clipsham Inc. Reports by sub-consultants Matrix Solutions Inc., Pearson Engineering Ltd, GHD Limited and Aboud & Associates were attached as appendices to this report. According to the Executive Summary, most of the work between the 30% and 50% design stages relates to bank stabilization and channel design for the Creek, in order to stabilize the slope between the Site and the Creek’s floodplain. Proposed measures include vegetated rip rap bank treatment and buried stone bank treatments.

Mr. Poch submitted that this 50% design report is closer to a 70%-90% level of detail in terms of what work remains to be done. The other parties require several weeks for their technical advisors to review this material. The longstanding controversy with regard to the issue of unpaid fees due from the Appellant to TRCA has been resolved. Ms. Stevens advised that this was an historical matter related to a standard administrative fee due for an application made on behalf of the Appellant to the TRCA in 2012.

21. December 1, 2016:

An update circulated to the parties by Mr. Poch in advance of this TCC indicated that the TRCA permit application fee has now been paid. Information exchange, reviews and comments between technical advisors has continued throughout the Fall. After further input is prepared by a variety of the Appellant’s consultants, the 100% design submission will be formulated. The time frame for this step is estimated at a minimum of three months, although Mr. Poch suggested that 4-5 months is more likely. However, material that becomes available prior to that point will be circulated to others in advance.

Next steps beyond that stage are issuance by TRCA of a permit, approval by MOE of the ECA and discontinuance of the appeal proceeding. Ms. Stevens advised that much progress had occurred since the previous TCC, and another meeting has been arranged for the two technical teams to continue working together. A number of components included by the Appellant in the timeline table circulated in September are items which the TRCA has repeatedly requested in the past. In order to have saved time with reviews, these items should have been circulated previously. She was concerned that this delay might result in inadequate time for construction in 2017.

In order to expedite the remainder of the process, I urged the parties to determine which studies and reports can be exchanged for review in advance of the production of the draft 100% design report. Rather than wait 4-6 months for the next status hearing, I suggested a TCC much sooner in order to be sure that both sides have talked and agreed on what documents and information is forthcoming, and when. With respect to the question of the endpoint and timing for the withdrawal of the Tribunal appeal, Ms. Stevens submitted that this should await actual construction of the SWMS.

2017

22. February 21, 2017:

A summary of developments was circulated by Mr. Poch prior to this TCC. A meeting between technical advisors of the Appellant and TRCA was held on December 14 to discuss the 50% design report and possible design features. Topics and issues addressed by the technical teams since the previous TCC include such things as changes to storm water ponds, slope stability, retaining wall, alternative to rip rap (GroSoxx) and storm flow rates. The summary also listed steps to be followed to finalize the 100% design.

Mr. Poch estimated that the 100% design submission would not be ready until late July. Any components that are ready ahead of time will be circulated to MOE and TRCA. Jon Bradbury advised that he has replaced Ms. Kromkamp as counsel for the Director. He expressed concern about the length of time the process has been taking, especially since the parties are not yet near the finish line. He maintained that this delay has not been in the public interest, and suggested that the Director might ask the Tribunal to press ahead with a hearing if there is no construction by the Fall. He also inquired about the parameters for construction.

Mr. Poch replied that if approval and permits are available by the end of the summer, construction will commence in the Fall. Mr. Brent indicated that due to warm water and fisheries issues, no work can occur during the period from April through to June. He warned that by July there might be natural constraints such as abundant overgrowth of vegetation. There can be no tree removal between April and August due to the issue of migratory bird habitat unless it is done under proper supervision. Mr. Poch indicated that the process of arranging bids (RFPs) from contractors, entering contracts, ordering equipment and materials and securing insurance can require 4-8 weeks before the commencement of construction. Mr. Stoltz indicated that September is the target for commencing construction, which might continue for 4-8 weeks.