Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE:
June 25, 2018
CASE NO.:
18-014
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended and section 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40, as amended
Appellant:
See Appendix 1 – Appellant List
Respondent:
Director, Ministry of the Environment and Climate Change
Subject of appeal:
Order to comply with various work items in regards to a contamination of water from a wood waste landfill
Reference No.:
4375-ATZM9B
Property Address/Description:
Lot 9 and 10, Concession 5, Bucke Township
Municipality:
City of Temiskaming Shores
ERT Case No.:
18-014
ERT Case Name:
Alizadeh v. Ontario (Environment and Climate Change)
Heard:
May 11 and June 12, 2018 by telephone conference call
APPEARANCES:
Parties
Counsel
Laila Alizadeh, Arash Missaghi and Mansteel New Liskeard Inc.
Leonard Griffiths
Grant Erlick
Self-represented
Director, Ministry of the Environment and Climate Change
Mitchel Boughs
ORDER DELIVERED BY MARCIA VALIANTE
REASONS
Background
1Mansteel New Liskeard Inc. (“Mansteel”) owns a 38 hectare property located at 1107 Lakeshore Road South in the City of Temiskaming Shores (“Site”) on which there is an historic wood waste landfill, which includes systems for the management of leachate. Laila Alizadeh, Arash Missaghi and Grant Erlick are identified as current or former directors of Mansteel.
2The Site was sold to Mansteel in 2012 and existing environmental compliance approvals were transferred to it. In January 2013, Environmental Compliance Approval No. 2478-8YPHYE (“2013 ECA”) was issued by the Ministry of the Environment and Climate Change (“MOECC”) to Mansteel, approving a leachate collection system, irrigation system, evaporation pond and leachate treatment system. In April 2014, the MOECC issued Environmental Compliance Approval No. 5377-9CXPXG (“2014 ECA”) to Mansteel, approving modifications to the leachate evaporation pond and an aeration pond. The 2014 ECA revoked all previous approvals.
3In October 2013, a provincial officer with the MOECC issued a Provincial Officer’s Order to Mansteel and Mr. Erlick requiring numerous work items to bring operations of the landfill and leachate systems into compliance with the 2013 ECA. According to the MOECC, Mansteel did not comply with the 2013 ECA, the 2014 ECA and the Provincial Officer’s Order. Mansteel was prosecuted and a court ordered Mansteel to complete the leachate collection system by November 15, 2016.
4The MOECC alleges that the leachate management systems at the Site have still not been constructed in accordance with the 2013 and 2014 ECAs and the court order and that, as a result, toxic leachate is seeping from the landfill, leaking from the pumping stations, overflowing from the ponds, and then discharging into groundwater and surface water off-site. On March 22, 2018, Carroll Leith, MOECC Director, issued Director’s Order No. 4375-ATZM9B to Mansteel, Ms. Alizadeh, Mr. Missaghi and Mr. Erlick (“Director’s Order”) to take numerous actions on the Site to manage the Site, to repair and install equipment and to hire a professional engineer to oversee these actions. Mansteel, Ms. Alizadeh, Mr. Missaghi and Mr. Erlick (“Appellants”) appealed the Director’s Order to the Environmental Review Tribunal (“Tribunal”).
5The Appellants advised the Tribunal that they would be seeking a stay of the Director’s Order. A telephone conference call (“TCC”) was held on May 11, 2018 to discuss the scheduling of a stay motion. At that time, Leonard Griffiths advised that he had only recently been retained as counsel to Mansteel, Mr. Alizadeh and Mr. Missaghi. He stated that Mansteel was making progress toward compliance with the work items in the Director’s Order and advised that a stay would not be pursued at that time. The parties asked for another TCC to update the Tribunal, prior to scheduling of the Pre-hearing Conference (“PHC”).
6A TCC was held on June 12, 2018. At that time, Mr. Griffiths informed the Tribunal of progress toward compliance with the Director’s Order and discussions among the parties. Mitchel Boughs, counsel for the Director, agreed that there had been some progress but stated that the MOECC remained concerned that work items must be done properly and within an appropriate timeframe, to ensure completion of the leachate management systems this year. He requested that the Tribunal proceed to schedule the PHC.
7Mr. Boughs also requested that the Tribunal issue an order amending the Director’s Order. He stated that it only came to the Director’s attention recently that the constructed surface flow wetlands, part of the leachate treatment system, were not constructed in accordance with the 2014 ECA, and the amendments are necessary to ensure that they not be used until the wetlands are constructed as designed. The amendments are minor and clarify the full scope of what the Director intended to order. The Appellants consent to the amendments.
ORDER
8The Tribunal orders that the PHC in this proceeding be held at 10 a.m. on July 25, 2018 in:
Council Chambers
City Hall, City of Temiskaming Shores
325 Farr Drive
Haileybury, ON P0J 1K0
9The Tribunal further orders that Director’s Order No. 4375-ATZM9B be amended as follows:
a. In s. 1.29, on page 12, following the statements “This Court Order has also not been complied with as the system has not been constructed per the ECA. Deficiencies include…” add: “viii the Constructed Surface Flow Wetlands are undersized compared to the ECA and have not been constructed in accordance with the approved design.”
b. In Part 2: Work Ordered, amend Item No. 2.0 to read: “The Orderees, their employees or agents shall immediately refrain from using Pond No. 2 and the Constructed Surface Flow Wetlands until such a time as the Director has acknowledged in writing that as-built drawings have been provided to the Director which confirm that the pond and wetlands were constructed as approved by the ECA.”
c. In Part 2: Work Ordered, amend Item No. 10.0 to read: “By September 1, 2018, the Orderees shall construct Pond #2 and the Constructed Surface Flow Wetlands of the Sewage Works per the ECA.”
d. In Part 3: Definitions, add: “Constructed Surface Flow Wetlands’ means the same as provided in the ECA. It is the two unlined ponds currently constructed within the fenced area comprising the Leachate Treatment System.”
e. In Part 3: Definitions, amend the definition of “Leachate Treatment System” to read: “‘Leachate Treatment System’ means the treatment system approved by the Ministry under the ECA consisting of aeration ponds and Constructed Surface Flow Wetlands.”
Pre-hearing Conference Scheduled
Director’s Order Amended
“Marcia Valiante”
MARCIA VALIANTE
VICE-CHAIR
Appendix 1 – Appellant List
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 1
Appellant List
Appellant Name
File No.
Laila Alizadeh
18-014
Arash Missaghi
18-015
Mansteel New Liskeard Inc.
18-016
Grant Erlick
18-017