Gaffney v. Ontario (Environment and Climate Change), 2018 CanLII 47777

Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: May 24, 2018

CASE NO.: 15-005

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

Appellant: Donald M. Gaffney (ERT Case No.15-005)

Appellant: Elizabeth Jeanette Gaffney (ERT Case No. 15-006)

Appellant: John Gaffney (ERT Case No.15-007)

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Order issued under sections 17, 18 and 196(1) of the Environmental Protection Act to submit a remedial action plan with respect to groundwater and soil contamination

Reference No.: 0017-9RWHXN

Property Address/Description: 35430 and 35448 Huron Road, Goderich

Municipality: Central Huron

Upper Tier: County of Huron

ERT Case No.: 15-005

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

Heard: April 24, 2018 by telephone conference call and in writing

APPEARANCES:

Parties	Counsel
Donald Gaffney, Elizabeth Gaffney and John Gaffney	Barry Weintraub
Director, Ministry of the Environment and Climate Change	Justin Jacob
Canadian Tire Real Estate Ltd.	Natalie Mullins

DECISION DELIVERED BY MAUREEN CARTER-WHITNEY AND JUSTIN DUNCAN

REASONS

Background

1This decision relates to a settlement reached by the parties on appeals by Donald Gaffney, Elizabeth Gaffney and John Gaffney (“Appellants”) from the decision of the Director, Ministry of the Environment and Climate Change (“MOECC”) to issue Director’s Order No. 0017-9RWHXN dated December 18, 2014 under s. 17, 18 and 196(1) of the Environmental Protection Act (“EPA”) (“Director’s Order”). The Director’s Order requires the Appellants to, among other things, ensure that a remedial action plan (“RAP”) is developed and then implemented to address diesel contamination on properties known municipally as 35430 Huron Road (“Site 1”) and 35448 Huron Road (“Site 2”), Goderich.

2Site 1 is owned by Canadian Tire Real Estate Limited (“Canadian Tire”) and it is located adjacent to Site 2 which was owned by Huron Concrete Supply Limited (“Huron Concrete”). The diesel contamination is alleged to have originated on Site 2. The Appellants were named in the Director’s Order on the basis that they were identified as directors of Huron Concrete, a now bankrupt company which had previously operated a concrete batch plant on Site 2.

3In addition to the notice of appeal, filed on January 6, 2015, the Appellants also filed a notice of allegation against Canadian Tire in relation to the contamination and its remediation.

4On consent of the parties, on February 4, 2015 the Tribunal issued an interim order, with reasons to follow, altering the compliance dates contained in the Director’s Order in Conditions 2.1, 2.2, 2.3 and 2.4, and staying the requirement that the Appellants implement the RAP upon receipt of direction from the Director (Condition 2.5). Reasons for the interim order were subsequently released on March 26, 2015.

5A Pre-hearing Conference (“PHC”) was held in Goderich on March 27, 2015. At that time, on the basis of the notice of allegation filed against Canadian Tire and the consent of the parties, the Tribunal added Canadian Tire as a party to the appeals. Additionally, April 17, 2015 was set as the date by which the parties were to disclose and exchange relevant documents. May 1, 2015 was also set as the date for the continuation of the PHC by telephone conference call (“TCC”).

6During the TCC on May 1, 2015, the Tribunal set dates for the hearing of a motion relating to whether the Appellants can raise the issue as to whether the diesel contamination originated on Site 2 as a result of a ruling made on May 12, 2014 by the Ontario Superior Court of Justice. Additionally, dates were set for the hearing of the appeals, including a complete schedule for the appeals. Subsequent to the May 1, 2015 PHC, the parties agreed to defer the hearing of the motion and hearing dates were vacated to give time for the parties to engage in settlement discussions.

7Between mid-2015 and early 2018, the parties engaged in Tribunal-assisted mediation, the Appellants carried out work required by the Director’s Order, the parties held various experts meetings, and the parties appeared on multiple TCCs with the Tribunal for the purpose of providing an update on the progress of their settlement discussions.

8During a TCC on April 24, 2018, the parties made oral submissions and presented written settlement materials to the Tribunal consisting of:

a. Minutes of Settlement (“MOS”) including proposed amendments to the Director’s Order in Appendix A to the MOS, executed by the Appellants and the Director;

b. Final Report – Supplemental Site Investigation and Design of Barrier Wall prepared by Arcadis Canada Inc., dated April, 2017 (“Arcadis report”), which was proposed to be attached to the Director’s Order;

c. “Summary of meeting relating to barrier wall design and monitoring Program, 35448 Huron Road, Goderich”, prepared by Canadian Tire, dated July 25, 2017, proposed to be attached to the Director’s Order;

d. An Affidavit affirmed by Ian Mitchell, District Engineer with the MOECC;

e. An Affidavit affirmed by Jeffrey Markle, Regional Hydrogeologist with the MOECC; and

f. Submissions of the Director.

9The MOS, including the proposed amendments to the Director’s Order, are included with this decision as Appendix 1.

10During the April 24, 2018 TCC, counsel for Canadian Tire, Natalie Mullins, indicated that although Canadian Tire had not yet executed the MOS, she anticipated that her client would do so shortly. On May 7, 2018 the Tribunal received the executed MOS from Canadian Tire.

Issue

11The issue is whether to dismiss the proceeding under Rule 201 of the Tribunal’s Rules of Practice (“Rules”).

Relevant Legislation and Rules

12Rule 201 of the Tribunal’s Rules applies 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:

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.

13Section 3 of the EPA sets out the purpose of the Act to be considered in the application of Rule 201 in this context:

Purpose of Act

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

Discussion, Analysis and Findings

14The parties are all in agreement that the appeals should be resolved in accordance with the attached MOS. There are no other persons with status on these appeals.

15The parties have agreed to amend the Director’s Order to require, among other things, the installation of a barrier wall to prevent the potential for further contamination of Site 1 resulting from groundwater movement originating on Site 2, additional monitoring of groundwater to ensure the effectiveness of the barrier wall and to ensure that the barrier wall does not result in unanticipated movement of groundwater, and the provision of financial assurance by the Appellants for the work required by the Director’s Order.

16Mr. Mitchell provided the following explanations and opinions in his affidavit:

a. The proposed amendments to the Director’s Order are expected to prevent and/or manage the movement of contamination from Site 2 and to prevent harm to human health and the environment.

b. The installation of additional large diameter groundwater monitoring wells in combination with existing wells will allow for appropriate baseline testing and ensure that the barrier wall, when installed, will perform as intended.

c. Testing of barrier wall design and approval of the design by the Director prior to construction will ensure an appropriate design is chosen.

d. Installation of a barrier wall of approximately 45 metres (“m”) in length by 13 m in depth will be an effective measure to prevent the migration of contaminants and affected groundwater.

e. Financial assurance is intended to cover the work required by the Director’s Order as well as any contingency matters that may be encountered but have not yet been identified.

17Mr. Markle similarly provided the following explanations and opinions in his affidavit:

a. The barrier wall will provide an effective means of preventing and managing continued off-site contamination from Site 2.

b. The ongoing monitoring program, including the 5-year post barrier wall installation monitoring, will ensure appropriate monitoring is in place to detect any unanticipated off-site movement of contamination prior to entering the natural environment.

c. The monitoring and sampling required will include baseline groundwater and surface water monitoring using existing and new wells.

d. Surface water monitoring will sample Cemetery Creek upstream and downstream of Site 2 to ensure contamination is not entering the Creek.

e. Barrier wall design will be tailored to the characteristics of the contamination and soil conditions, including construction to a depth of 13 m at which point a low permeability layer of silt/clay exists.

f. Two new recovery wells will be required at each end of the barrier wall.

18The Arcadis report details how contamination will be removed from groundwater using recovery and monitoring wells. The report explains that contaminants will be removed using passive bailers that will be monitored monthly and that recovery may be shifted to other wells if contamination with certain characteristics that allow for recovery is discovered at those other locations. The Arcadis report explains that contaminant recovery will be monitored and adjusted over time and that recovery will continue until such time as contaminant recovery becomes negligible.

19Counsel for the Director, Justin Jacob, summarized the Director’s written submissions during the settlement hearing. He explained that after three years of complex negotiations, the parties have reached an agreement on the terms of the MOS that accomplish what the Director’s Order was originally intended to do, which was to prevent off-site movement of contamination from Site 2. He also advised that the MOS address the Director’s claim in separate bankruptcy proceedings that followed Huron Concrete’s declaration of bankruptcy.

20Mr. Jacob explained that the MOS propose an amendment to the Director’s Order that would require the Appellants to install a barrier wall, the objective of which is to prevent contaminant and groundwater migration across the property boundary from Site 2 to Site 1. He also explained that the MOS propose that a revised groundwater monitoring program be included in the Director’s Order, which would require the installation of additional monitoring wells to ensure the effectiveness of the barrier wall and that contaminant movement is not directed towards Cemetery Creek (a tributary of the Maitland River) which is located immediately northeast of Site 2. Furthermore, he explained that as part of the MOS, the Director’s Order is proposed to be amended to require that the Appellants provide financial assurance in the amount of $716,929 in order to ensure that the requirements of the amended Director’s Order are carried out.

21It was Mr. Jacob’s submission that the MOS ensure protection of the public interest, the environment and human health in accordance with the purpose of the EPA and, on that basis, he requested that the Tribunal issue a decision under Rule 201 of the Tribunal’s Rules to accept the withdrawal of the appeals by the Appellants, dismiss the proceeding and direct the Director to amend the Director’s Order in accordance with Appendix A of the MOS.

22Appellants’ counsel, Barry Weintraub, submitted that the MOS result in a net gain for the environment and represent a compromise by the Appellants. He concurred with the submissions made by counsel for the Director.

23Counsel for Canadian Tire, Ms. Mullins, agreed that the MOS represent a compromise between the parties. She concurred with the submissions and request made by counsel for the Director.

24In consideration of the materials filed by the parties in support of the MOS, including the written submissions of the Director, the affidavits of Mr. Mitchell and Mr. Markle, and the Arcadis report, and in consideration of the oral submissions made by the parties, the Tribunal finds that the MOS are consistent with the purpose and provisions of the EPA to protect and conserve the natural environment and the MOS are in the public interest.

25In conclusion, the Tribunal finds that the MOS meet the requirements of Rule 201 and that the proceeding should be dismissed.

DECISION

26The Tribunal directs the Director to issue an amended Director’s Order as set out in Appendix A to the MOS.

27The Tribunal further orders that the proceeding is dismissed.

Appeals Withdrawn

Proceeding Dismissed

Director Ordered to amend Director’s Order

“Maureen Carter-Whitney”

MAUREEN CARTER-WHITNEY

VICE-CHAIR

“Justin Duncan”

JUSTIN DUNCAN

VICE-CHAIR

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```