Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE:

January 30, 2019

CASE NO.:

17-004

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

Appellant:

Craig Bollinger (File No. 17-004)

Appellant:

Francois Bollinger (File No. 17-005)

Appellant:

Erectoweld Company Ltd. (File No. 17-006)

Respondent:

Director, Ministry of the Environment, Conservation and Parks

Subject of appeal:

Order to conduct certain work in relation to implementing a Vapour Intrusion Assessment Program

Reference No.:

1166-AG8S8T-1

Property Address/Description:

586 Third Line

Municipality:

Town of Oakville

Upper Tier:

Regional Municipality of Halton

ERT Case No.:

17-004

ERT Case Name:

Bollinger v. Ontario (Environment, Conservation and Parks)

Heard:

July 20, 2017 in Oakville, Ontario, and August 21, September 22, November 3 and December 11, 2017 and February 16, 2018 by telephone conference calls

APPEARANCES:

Parties

Counsel/Representative^+^

Craig Bollinger, Francois Bollinger and Erectoweld Company Ltd.

Ralph Cuervo-Lorens

Director, Ministry of the Environment, Conservation and Parks

Sylvia Davis*, Isabelle O’Connor and Justin Jacob**

Presenter

Edward (Ed) Benson

Self-represented

*July 20, 2017 only

** December 11, 2017 only

DECISION DELIVERED BY GRAHAM REMPE AND MARCIA VALIANTE

REASONS

Background

1Erectoweld Company Ltd. (“ECL”) operates an industrial facility at 586 Third Line in the Town of Oakville (“Site”). Francois (Frank) Bollinger is the sole shareholder of ECL and Craig Bollinger is the manager of the ECL facility. They are collectively referred to herein as the “Appellants”. The ECL Site is located adjacent to 12 residential properties on Saxon Road and Swann Drive. On January 12, 2017, Alisha Benjamin, Provincial Officer with the Ministry of the Environment and Climate Change, now the Ministry of the Environment, Conservation and Parks (“MECP”), issued an order to the Appellants (“P.O. Order”). The Appellants requested a review of the P.O. Order pursuant to s. 157.3 of the Environmental Protection Act, and on February 17, 2017, Tim Webb, Director, MECP, issued Director’s Order No. 1166-AG8S8T-1 (“Director’s Order”), amending some of the actions required in the P.O. Order. The Appellants appealed the Director’s Order to the Environmental Review Tribunal (“Tribunal”) on March 1, 2017.

2The ECL Site was purchased by Mr. F. Bollinger in 1986. When Mr. F. Bollinger was preparing to sell the property in 2008, he became aware of a plume of volatile organic compounds (“VOC”), including perchloroethylene and its degradation products, on the Site. In their Notice of Appeal, the Appellants state that ECL is not the source of the contamination, but it is the result of contaminated groundwater migrating through the Site from industrial facilities located up-gradient from the Site. The Appellants indicate that they are involved in litigation with the owners of these facilities to recover costs associated with the contamination.

3The Appellants state that they have worked with the MECP since 2010 to address the contamination. In April 2016, the MECP issued an order to ECL requiring that a qualified consultant be retained in order to delineate the contamination on and around the ECL Site (“April 2016 Order”). ECL took steps to comply with the April 2016 Order and provided the MECP with the results of groundwater sampling and soil vapour sampling. In response, the MECP reviewer identified uncertainties in the soil vapour sampling data and, based on the groundwater sampling data at the Site boundary, predicted that indoor air concentrations of four VOCs would exceed applicable health-based indoor air criteria at the 12 adjacent residential properties, which are down-gradient from the Site. The MECP reviewer recommended a third-party peer review of the sampling. Instead, ECL retained a consultant who provided a proposal for re-sampling soil vapour to address the MECP’s concerns. The MECP did not find the proposal acceptable and ECL did not agree with the MECP’s proposed amendments. As a result, the P.O. Order was issued, effectively amending the April 2016 Order. The Director’s Order, which amended the P.O. Order, requires development of a work plan, to be prepared in accordance with a MECP guidance document, and, once accepted by the MECP, requires completion of the work. The purpose of the work is to evaluate the risks of vapour intrusion to all 12 of the nearby homes.

4The Tribunal, comprised of a different panel, held a Pre-hearing Conference (“PHC”) in Oakville on July 20, 2017. A number of residents from the adjacent properties attended. One of these residents, Ed Benson, indicated that he intended to attend the hearing and would keep other affected residents advised. Mr. Benson requested Presenter status. Neither the Appellants nor MECP had any objection, and the Panel granted Mr. Benson Presenter status.

5It was evident from discussion at the PHC that much of the delineation work ordered by MECP had been carried out, or was being carried out. The Appeal was focused on the extent of the sub-slab and indoor air monitoring that should be conducted. The Appellants were of the view that the testing of all 12 adjacent residential properties was not necessary, based on their consultant’s workplan.

6At the PHC, the parties requested, and the Tribunal granted, an adjournment to allow time for the parties to further discuss potential resolution of this difference in approach. Over the following year, several telephone conference calls (“TCC”) were held to update the Tribunal on the status of the Appellants’