Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: March 21, 2019

CASE NO.: 17-056

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

Appellant: Gerdau Ameristeel Corporation

Respondent: Director, Ministry of the Environment, Conservation and Parks

Subject of appeal: Order to perform various work with respect to the discharge of contaminants

Reference No.: 3853-AQBTKH-DO

Property Address/Description: 2025 River Road

Municipality: City of London

ERT Case No.: 17-056

ERT Case Name: Gerdau Ameristeel Corporation v. Ontario (Environment, Conservation and Parks)

Heard: January 26, March 14, April 23, June 14 and September 26, 2018 and February 14, 2019 by telephone conference call

APPEARANCES:

Parties	Counsel
Gerdau Ameristeel Corporation	Marc McAree, Matthew Gardner and Erin Garbett (student)
Director, Ministry of the Environment, Conservation and Parks	Nicholas Adamson and Mitchel Boughs

ORDER DELIVERED BY HELEN JACKSON, WARREN MORRIS AND MARCIA VALIANTE

REASONS

Background

1Gerdau Ameristeel Corporation (“Gerdau” or “Appellant”) owns land located at 2025 River Road in London, Ontario (“Site”), where it operates a metals recycling facility. The Site abuts land owned by the City of London (“City”) that is operated as the River Road Golf Course (“golf course”). A municipal drain is located on the City’s property approximately 40 metres beyond the property line of the Site and drains into an irrigation pond on the golf course. This pond then discharges to the Thames River.

2On June 7, 2017, the Spills Action Centre of the Ministry of the Environment, Conservation and Parks (“MECP”) received a call from the City reporting what appeared to be petroleum hydrocarbons in the municipal drain and the irrigation pond on the golf course property. Following an inspection, Andrew Woodhouse, a Provincial Officer with the MECP, concluded that the Site was the source of the discharge of petroleum hydrocarbons. Mr. Woodhouse requested Gerdau to cease crushing vehicles and to have its consultant, XCG Consulting Limited (“XCG”) prepare two Remedial Action Plans (“RAP”): a short-term RAP outlining steps to prevent stormwater from leaving the Site and to contain the discharge; and, a long-term RAP that would include delineation of the extent of the discharge, a full assessment of the impacts of the discharge and remedial measures to restore impacted areas.

3Gerdau responded to Mr. Woodhouse’s directions. After removing some impacted soil, testing by XCG revealed the presence of polychlorinated biphenyls (“PCBs”), which Mr. Woodhouse believed to be in a concentration above MECP standards. Following submission and review of the RAP, Mr. Woodhouse determined that the plan was not adequate to fully address the MECP’s concerns. On August 18, 2017, Mr. Woodhouse issued Provincial Officer’s Order No. 3853-AQBTKH (“P.O. Order”) to Gerdau, ordering certain work to be done. Gerdau requested a review of the P.O. Order pursuant to s. 157.3(1) of the Environmental Protection Act (“EPA” or “Act”).

4Following a review of the P.O. Order, on September 7, 2017, Robert Wrigley, Director, MECP, issued Director’s Order No. 3853-AQBTKH-DO (“Director’s Order”), which altered the P.O. Order but stated that the “essential elements”, being the “requirements to delineate, report, recommend and implement”, of the P.O. Order were maintained. Gerdau appealed the Director’s Order to the Environmental Review Tribunal (“Tribunal”) on September 21, 2017 pursuant to s. 140(1) of the EPA. In its Notice of Appeal, Gerdau stated that it was in compliance with Items 1 to 4, but appealed specific elements in Items 3, 4, 5, 6, 8 and 10 of the Director’s Order.

5The Tribunal held a Pre-hearing Conference (“PHC”) by telephone conference call (“TCC”) on January 26, 2018. At that time, the Appellant and the Director jointly requested the Tribunal to approve Minutes of Partial Settlement (“MPS”) signed by the parties in December 2017. In the MPS, the parties agreed that the Director’s Order should be amended as set out in Attachment 1 to this Order. The Tribunal made an oral ruling approving the MPS and directing the Director to issue an amending order in accordance with the MPS. As a result of the MPS, only Items 8(b) and 10 of the Director’s Order remained under appeal. The Tribunal did not issue a written order dismissing parts of the appeal because the parties advised that their ongoing discussions would likely result in a resolution of all issues and dismissal of the entire appeal within about six weeks. The Tribunal adjourned the PHC to a TCC scheduled for March 14, 2018.

6At the TCC on March 14, 2018, the parties advised the Tribunal that work was continuing in compliance with the Director’s Order, as were discussions between the parties in order to resolve the remaining outstanding issues. They requested another adjournment. Subsequently, the Tribunal held TCCs on April 23, June 14 and September 26, 2018 to receive status updates. A further TCC was scheduled for May 14, 2019.

7On February 7, 2019, Nicholas Adamson, counsel to the Director, wrote to the Tribunal advising that the parties had entered into Further Minutes of Partial Settlement (“FMPS”) and sought the Tribunal’s approval of further amendments to the Director’s Order. A TCC was held on February 14, 2019 to discuss the FMPS. Under the FMPS, the parties agreed that Items 6 and 8 in the Director’s Order should be further amended, as set out in Attachment 2 to this Order. The Tribunal made an oral ruling approving the FMPS and directed the Director to further amend the Director’s Order. As a result of the FMPS, Items 8(b) and 10 in the Director’s Order remain under appeal. Thus, the Tribunal scheduled a continuation of the PHC.

8This Order confirms the Tribunal’s oral rulings and provides reasons for them.

Issue

9The issue is whether partial settlement agreements are consistent with the purpose and provisions of the EPA and are in the public interest.

Relevant Legislation and Rule

10EPA s. 3(1) sets out the purpose of the Act:

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

11Rule 201 of the Tribunal’s Rules of Practice provides:

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.

Discussion, Analysis and Findings

12In the MPS, the parties agreed to amendments to Items 5, 6 and 8 of the Director’s Order that resolved certain of the Appellant’s concerns with the wording of those items. The amendments did not change the Appellant’s essential obligations under the Director’s Order but clarified the scope and adjusted the timing of those obligations. By the time of the PHC, most of the amended items had been complied with. The parties submitted that the amendments were consistent with the purpose and provisions of the Act and were in the public interest. After reviewing the MPS, the Tribunal accepted and relied on the parties’ submissions and found that the amendments are consistent with the purpose and provisions of the Act and are in the public interest. There are no participants or presenters in this proceeding.

13Prior to entering into the FMPS, the Appellant submitted a revised RAP to the MECP, which was approved by the MECP. The revised RAP addresses the petroleum hydrocarbon and PCB contamination in the municipal drain and irrigation pond. Under the FMPS, the parties agreed to amendments to Items 6 and 8 of the Director’s Order. Item 6.1 would be amended to require that implementation of the revised RAP be commenced by February 28, 2019. Item 6.2 would be amended to require that implementation of the revised RAP be completed in accordance with the timetable in the revised RAP, which specifies completion of remediation work by no later than November 1, 2019. Item 8(b) would be amended to require that the Appellant’s consultant handle “all wastes generated from the execution of the Remedial Plan in accordance with the Remedial Plan.” Under the revised RAP, soils and sediments will be excavated from City-owned property and transferred to the Site, where the material will be dewatered and the water treated. The revised RAP provides that all wastes generated from the remediation work will be handled in accordance with the General Waste Management Regulation, R.R.O. 1990, Regulation 347 (“Reg. 347”), adopted under the EPA. Waste soils and sediments will be tested and then removed from the Site and transported by MECP-approved waste haulers to a MECP-approved disposal facility.

14Mr. Adamson noted that the Director considers it urgent that remediation commence immediately and that this precludes the Appellant from obtaining an environmental compliance approval for the waste activities on the Site, given the time it takes to process such an application. He further submitted that the amendments to the Director’s Order will legally bind the Appellant to carry out the work and thus will have a similar legal effect. He noted that the provisions of the revised RAP were reviewed by MECP staff and determined to be consistent with the requirements of Reg. 347. Mr. Adamson submitted that the amendments are consistent with the purpose and provisions of the EPA and are in the public interest. Matthew Gardner, counsel to the Appellant, concurred with these submissions.

15The parties agreed that the FMPS do not fully resolve all outstanding issues with Item 8(b) or Item 10 of the Director’s Order. The parties will continue their discussions and hope to resolve all remaining issues by the time of the next TCC.

16The Tribunal accepted and relied on the submissions of the parties. The Tribunal reviewed the FMPS and the revised RAP and found that the amendments to the Director’s Order are consistent with the purpose and provisions of the EPA and are in the public interest.

ORDER

17The Tribunal orders:

a. The Director is directed to amend Director’s Order No. 3853-AQBTKH-DO in accordance with the Minutes of Partial Settlement and the Further Minutes of Partial Settlement, attached hereto as Attachments 1 and 2;

b. The proceeding will be continued at a TCC to be held on Thursday, June 20, 2019 at 10 a.m. The TCC scheduled for May 14, 2019 at 10 a.m. is cancelled.

Director Directed to Amend Order

Procedural Directions Ordered

“Helen Jackson”

HELEN JACKSON

MEMBER

“Warren Morris”

WARREN MORRIS

MEMBER

“Marcia Valiante”

MARCIA VALIANTE

VICE-CHAIR

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 Tribunals Ontario - Environment and Land Division Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248