Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: May 02, 2018
CASE NO.: 11-125
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellant: Nagata Auto Parts Canada Co., Ltd. (ERT Case No. 11-125)
Appellant: Nortel Networks Limited/Corporation Nortel Networks Limitee (ERT Case No. 11-126)
Respondent: Director, Ministry of the Environment and Climate Change
Subject of appeal: Order regarding the maintenance and operation of a groundwater extraction and treatment system, the name of a qualified Consultant to carry out the work of a clean-up plan and the discharge of volatile organic compounds, trichloroethylene and its breakdown products from operations impacting groundwater
Reference No.: 3250-8J4J3G
Property Address/Description: Site 1) Concession 3, PT Lot 15 RP 33R13850 Parts 3 to 5 Site 2) Concession 3, PT Lots 14 & 15 RP 33R12879 Parts 1 & 2 Site 3) Concession 3, PT Lots 14 & 15 RP 33R12879 Parts 3 to 9, and Site 4) Concession 3, PT Lot 15 RP EER13850 Parts 6 to 8
Municipality: County of Middlesex
ERT Case No.: 11-125
ERT Case Name: Nagata Auto Parts Canada Co., Ltd. v. Ontario (Environment and Climate Change)
Heard: March 8, 2018 by telephone conference call
APPEARANCES:
| Parties | Counsel |
|---|---|
| Nagata Auto Parts Canada Co., Ltd. | Laird French |
| Director, Ministry of the Environment and Climate Change | Justin Jacob and Hayley Valleau (student-at-law) |
| The Corporation of the City of London | Lynn Marshall |
DECISION DELIVERED BY HUGH S. WILKINS
REASONS
1This Decision addresses the remaining appeal arising from a Director’s Order of the Ministry of the Environment (now the Ministry of the Environment and Climate Change (“MOECC”)) requiring work to be done at contaminated sites in Middlesex County (“County”). The proceeding initially consisted of two appeals. One was brought by Nagata Auto Parts Canada Co., Ltd. (“Nagata”). It is the subject matter of the present Decision. The other was brought by Nortel Networks Limited/Corporation Nortel Networks Limitee (together with its relevant successor companies referred to as “Nortel”). It was filed as Tribunal Case No. 11-126. That appeal was dismissed by way of an Order of the Tribunal, dated February 15, 2018 (“February 2018 Order”) (see: Nagata Auto Parts Canada Co., Ltd. v Ontario (Environment and Climate Change), 2018 6906).
2Nagata now seeks to withdraw its appeal and have the proceeding dismissed. The Tribunal held a telephone conference call (“TCC”) on March 8, 2018 to hear evidence and submissions on the proposed withdrawal and dismissal. For the reasons that follow, the Tribunal accepts the proposed withdrawal and dismisses the proceeding.
Background
3As summarized in the February 2018 Order, Nortel carried on business at the property in question until 1994. In 1997, the property was subdivided into four sites:
- Site 1 was retained by Nortel (Concession 3, PT Lot 15 RP 33R13850 Parts 3 to 5);
- Site 2 was acquired by Nagata and is now occupied by London Automotive and Manufacturing (Concession 3, PT Lots 14 and 15 RP 33R12879 Parts 1 and 2);
- Site 3 was acquired by the Corporation of the City of London (“City”) (Concession 3, PT Lots 14 and 15 RP 33R12879 Parts 3 to 9); and
- Site 4 was acquired by Freightliner Properties Ltd. (“Freightliner”) (Concession 3, PT Lot 15 RP EER13850 Parts 6 to 8).
Collectively, Sites 1, 2, 3 and 4 are referred to as the “Sites” in this Decision.
4In 1999, Nortel paid for the installation of a groundwater extraction and treatment system to address groundwater contamination on Sites 1 and 2. The system operated under Certificate of Approval No. 5590-5J9TE4. A consultant was retained to manage the system and to provide annual monitoring program reports to the MOECC.
5When reviewing annual reports in June 2009, technical staff at the MOECC questioned the effectiveness of the system and its ability to keep contamination from migrating from Sites 1 and 2. On October 7, 2009, Provincial Officer Don Hayes issued Provincial Officer’s Order Number 6548-7WJKV4 (“2009 Provincial Officer’s Order”) to Nortel, Nagata, the City and Freightliner concerning the impacts of contamination from volatile organic compounds (“VOC”) and trichloroethylene (“TCE”) and its breakdown products at various locations on the Sites. It required Nortel to retain a consultant to prepare a plan containing an assessment of the system’s effectiveness, an evaluation of potential offsite contaminant migration, a delineation of the area, location and extent of contamination, and an assessment of groundwater quality down gradient of the areas of contamination.
6On October 26, 2009, Nortel requested a review of the Provincial Officer’s Order by the Director. On October 29, 2009, Director’s Order No. DO-6548-7WJKV4 (“2009 Director’s Order”) was issued to Nortel confirming the 2009 Provincial Officer’s Order in its entirety. On November 17, 2009, Nortel filed a Notice of Appeal with the Tribunal.
7On July 26, 2011, the Director informed the Tribunal that she intended to revoke her Order and that she had issued a new Order on July 20, 2011 to replace it. This new Order was Director’s Order No. 3250-8J4J3G (“2011 Director’s Order”). On July 29, 2011, Nagata appealed the 2011 Director’s Order, as did Nortel.
8While the 2011 Director’s Order is substantially similar to the 2009 Director’s Order, it addresses additional concerns about the Sites. Among other things, the 2011 Director’s Order requires that Nagata and Nortel prepare and obtain MOECC approval of a work plan for specified locations of groundwater impacts at the Sites in order to prevent or reduce the risk of discharge of contaminated groundwater into the natural environment and to prevent, decrease or eliminate any adverse effects that might result from such a discharge in, on or under the Sites.
9During the course of the above-noted events, Nortel obtained protection under the Companies’ Creditors Arrangement Act (“CCAA”). The Parties updated the Tribunal as the matter proceeded through the courts under the CCAA. Over this time period, the Tribunal convened numerous TCCs at which it was informed of the Parties’ efforts to resolve the matters and at which procedural issues were addressed. Orders staying the 2011 Director’s Order were issued and the Tribunal granted party status to the City and Freightliner.
10On December 18, 2017, a TCC was held at which the Director and Nortel informed the Tribunal that they had a reached a settlement with respect to the Nortel appeal (Tribunal File No. 11-126). On January 19, 2018, the Tribunal convened a settlement TCC at which it accepted Nortel’s withdrawal of its appeal, revoked the 2011 Director’s Order as against Nortel, and dismissed Nortel’s appeal. At the TCC, Freightliner withdrew as a party. The Tribunal’s reasons are set out in the February 2018 Order.
11On March 7, 2018, Nagata informed the Tribunal that Nagata and the Director had reached a settlement of the Nagata appeal. As noted above, on March 8, 2018, the Tribunal convened a settlement TCC at which it heard evidence and submissions on the proposed withdrawal and dismissal.
Relevant Legislation and Rules
12The following are the relevant provisions of the Environmental Protection Act (“EPA”) and the Tribunal’s Rules of Practice (“Rules”):
Purpose of the Act
3.(1) The purpose of this Act is to provide for the protection and conservation of the natural environment.
Tribunal’s Rules
Termination of Proceedings
A Proponent or Applicant who proposes to withdraw an application, an Appellant who proposes to withdraw an appeal, or a Director, Risk Management Inspector or Official, Authority or municipality who proposes to revoke a decision that is the subject of the appeal shall notify the Tribunal, other Parties, Participants and Presenters by letter. Any Party, Participant or Presenter who objects to the proposed withdrawal of an appeal or revocation, with the exception of the revocation of an order made under section 74 of the Ontario Water Resources Act, shall notify the Tribunal and the other Parties, Participants and Presenters within ten days of the date of the letter.
Where there has been a proposed withdrawal of an appeal not agreed to by all Parties, the Tribunal shall consider whether the agreement is consistent with the purpose and provisions of the relevant legislation and whether the proposed withdrawal 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.
Issues
13The issues to be addressed are whether the Tribunal should accept the proposed withdrawal of Nagata’s appeal and dismiss the corresponding proceeding under Rule 200.
Discussion, Analysis and Findings
14Rule 198 of the Tribunal’s Rules requires that an appellant who proposes to withdraw its appeal must provide 10 days’ notice of its intentions by letter to the Tribunal, other parties, participants and presenters. In the present case, Nagata provided notice of its intention to withdraw its appeal on March 7, 2018. Although evidence and submissions regarding the proposed withdrawal were heard the next day by TCC, the Tribunal withheld its decision until the 10-day time period set out in Rule 198 had expired, providing parties, participants and presenters time to object. No objections were made.
15Although the City does not object to the proposed withdrawal, it also does not consent to it. Where there has been a proposed withdrawal of an appeal not agreed to by all Parties, the Tribunal must consider under Rule 200 whether the proposed withdrawal is consistent with the purpose and provisions of the EPA and whether it is in the public interest. In these regards, the Tribunal must also consider the interests of parties, participants and presenters. The Tribunal has the discretion either to continue with a proceeding or to dismiss it.
16The Director filed an affidavit sworn by Todd Fleet, dated January 17, 2018. Mr. Fleet is the District Engineer in the MOECC’s London District Office. The affidavit states that Mr. Fleet reviewed environmental risk assessments that were conducted at the Sites by Golder Associates Ltd. (“Golder Associates”) on behalf of Nortel and that he is satisfied that they provide acceptable approaches to protecting the environment and human health in respect of the Sites. Mr. Fleet states that he is of the opinion that Nortel’s site investigations, assessments and reports “substantially satisfy” the environmental requirements of the 2011 Director’s Order.
17At the March 8, 2018 TCC, Mr. Fleet was qualified as a professional engineer and provided opinion evidence on the proposed settlement. He stated that earlier that day (on March 8, 2018) he issued Provincial Officer’s Order No. 6277-AWLJL6 to Nagata (“March 2018 Provincial Officer’s Order”) requiring it to implement risk management and monitoring measures identified in Golder Associates’ risk assessments. The measures set out in the March 2018 Provincial Officer’s Order include:
- risk management measures in the event of building construction on the Sites;
- a health and safety plan for the Sites;
- site monitoring and maintenance, including annual groundwater sampling and analysis; and
- the development of contingencies for groundwater, soil vapour and indoor air monitoring at the Sites.
18Mr. Fleet stated that the work required under the 2011 Director’s Order had been substantially completed and that the March 2018 Provincial Officer’s Order will ensure that the remaining contamination that is the subject of the 2011 Director’s Order will be managed and/or remediated. Some of the funds provided by Nortel pursuant to the settlement of its appeal will be used for this work.
19The Director submits that the proposed withdrawal of the appeal supports the MOECC’s mandate to protect the environment and human health, is consistent with the purpose and provisions of the EPA and is in the public interest.
20Nagata submits that Golder Associates’ risk assessments provide for acceptable approaches to protecting human health and the environment at the Sites and that the March 2018 Provincial Officer’s Order provides for a method and process of implementing the risk assessments’ recommendations.
21The City does not oppose the proposed withdrawal of Nagata’s appeal. There are no participants or presenters in this proceeding.
22Taking into account the provisions of the 2011 Director’s Order, the work that has already been completed by Nortel and the issuance of the March 2018 Provincial Officer’s Order requiring further work to be undertaken at the Sites in line with the recommendations in Golder Associates’ risk assessments, the Tribunal finds that the proposed withdrawal of the Nagata appeal is consistent with the purpose and provisions of the EPA. The Tribunal also finds that it is in the public interest.
23The Tribunal accepts Nagata’s withdrawal of its appeal and dismisses the proceeding in Tribunal Case No. 11-125 pursuant to Rule 200. This dismissal concludes the proceeding.
DECISION
24The withdrawal of Nagata’s appeal is accepted. The appeal in Tribunal Case No. 11-125 is dismissed.
Appeal 11-125 Withdrawn
Appeal 11-125 Dismissed
“Hugh S. Wilkins”
HUGH S. WILKINS MEMBER
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