Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: August 30, 2019

CASE NO.: 16-109

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

Appellant: Corporation of the City of Mississauga

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

Subject of appeal: Order to perform various work with respect to waste street sweepings

Reference No.: 3506-A8QGC3

Property Address/Description: Cayuga Site, Selkirk Site, and Other Sites

Municipality: Various municipalities

ERT Case No.: 16-109

ERT Case Name: Mississauga (City) v. Ontario (Environment, Conservation and Parks)

Heard: August 8, 2019 by telephone conference call

APPEARANCES:

Parties

Corporation of the City of Mississauga

Counsel

Liane Langstaff

Parties

Director, Ministry of the Environment, Conservation and Parks

Counsel

Isabelle O’Connor Jessica Rosenberg

ORDER DELIVERED BY MARLENE CASHIN AND JUSTIN DUNCAN

REASONS

Background

1On November 30, 2016, Tim Webb, Director, Ministry of the Environment and Climate Change, now the Ministry of the Environment, Conservation and Parks (“MECP”), issued Director’s Order No. 3506-A8QGC3 (“Director’s Order”) to the Corporation of the City of Mississauga (“City”). The Director’s Order relates to street sweepings from the City that were delivered to various properties between 2004 and 2011, defined in the Director’s Order as the “Cayuga Site”, “Selkirk Site”, “Other Sites” and “Additional Sites”.

2The Director’s Order requires the City, by specified dates, to take all necessary steps to: share information in the City’s possession relating to the street sweepings (Part 3a, Items No. 1 to 5); retain one or more Qualified Persons to complete work with respect to street sweepings at the Cayuga Site (Part 3b, Items No. 6 to 9); retain one or more Qualified Persons to complete work with respect to street sweepings at the Selkirk Site (Part 3c, Items No. 10 to 12); retain one or more Qualified Consultants to conduct a forensic audit regarding the Other Sites and Additional Sites, prepare a report and submit it to the Director and Public Health Officials (Part 3d, Items No. 13 to 16); and retain one or more Qualified Persons to complete work with respect to street sweepings at the Other Sites, and the Additional Sites where a specific property address is known (Part 3d, Items No. 17 to 20).

3On December 6, 2016, the City filed a notice of appeal of the Director’s Order with the Environmental Review Tribunal (“Tribunal”). The City appealed the Director’s Order in its entirety, including the work ordered pursuant to each Work Item set out in Part 3.

4The City sought a stay of all the Work Items in the Director’s Order pending the disposition of this appeal. In an order issued December 13, 2016, the Tribunal granted the City’s request for an interim stay. The Tribunal heard the stay motion on January 23, 2017 and, on February 28, 2017, issued an order: granting a stay of Part 3b, Part 3c and Items No. 17 to 20 of Part 3d of the Director’s Order until the final resolution of the appeal; and dismissing the City’s request for a stay of Part 3a and Items No. 13 to 16 of Part 3d of the Director’s Order (See Mississauga (City) v Ontario (Environment and Climate Change), 2017 11501 (ON ERT)). In a further order issued April 7, 2017, the Tribunal ordered revised dates for completion of the Work Items in Part 3a and Items No. 13 to 16 of Part 3d of the Director’s Order (2017 19954 (ON ERT)).

5Following the disposition of the stay motion, the Tribunal convened several status telephone conference calls on June 23, July 25, October 3, November 3 and December 5, 2017 and January 16, 2018, involving various counsel for the Parties, to address procedural issues in advance of scheduling the Pre-hearing Conference (“PHC”).

6At the PHC held in Mississauga on March 28, 2018 there were no requests for status in the matter. Filing deadlines were set and a 10-day hearing was scheduled to commence on November 7, 2018.

7Subsequent to the PHC, the Parties advised the Tribunal that they were attempting to reach a settlement and they requested that the hearing dates be vacated. The Tribunal vacated the hearing dates and received various updates from the Parties on the status of their settlement discussions.

8A telephone conference call was held on August 8, 2019 for the purpose of hearing submissions on a proposed settlement agreement reached by the Parties. The Proposed Minutes of Settlement entered into by the Parties includes a Terms of Reference that establishes a process for assessing and addressing contaminants that may be contained in street sweepings at various properties. The Proposed Minutes of Settlement, including the Terms of Reference, are appended to this Order as Appendix 1. The Terms of Reference can be summarized as follows:

a. Identifies various properties in the City assessed through a completed Forensic Audit that will require no further assessment.

b. Requires the City to engage in consultation with property owners who received street sweepings on their properties.

c. Requires the City to hire an environmental consulting firm to conduct site visits on properties where street sweepings were received to confirm the location of street sweeping deposits. City and MECP staff will accompany the City’s consultant on site visits.

d. Requires the City to conduct sampling and testing of street sweepings.

e. Requires the City to compare testing results against the applicable site condition standards as found in “Soil, Ground Water and Sediment Standards for Use Under Part XV.1 of the Environmental Protection Act” for each site that received street sweepings.

f. If test results for any contaminants of concern do not meet the applicable site condition standards, then the City’s consultant is to undertake further risk analyses to determine if the levels of contaminants found at the Site have the potential to cause harm to human health and/or the environment. A report will be prepared that will include an overview of the test results, information on any potential risks to human and environmental health and recommendations regarding whether the street sweepings should be left in place, and if so, under what conditions. The report will be prepared by consultants hired by the City and will be reviewed by the MECP. Comments, if any, will be provided to the City and are to be addressed by the City’s consultant in a final report to be provided to the property owner, local Health Unit and MECP.

g. Upon receiving the final report, the City and MECP will contact the property owner to discuss the results of the testing and options for the street sweepings deposited on the property. Options include the implementation of risk management strategies, removal of street sweepings or no further action (street sweepings left in place).

h. If there is disagreement between a property owner and the City on the implementation of mitigation measures or removal of street sweepings, the City shall inform the MECP. If the City and the MECP disagree on the implementation of mitigation measures or removal of street sweepings, the matter will be referred to the Tribunal for resolution.

9As part of the Proposed Minutes of Settlement, the Parties have agreed that the City will not withdraw its appeal while the measures outlined in the Terms of Reference are being undertaken. Further, they have agreed that should a dispute with respect to any aspect of the Terms of Reference arise, either Party may request the assistance of the Tribunal in resolving the dispute. Finally, upon completion of the measures outlined in the Terms of Reference, the Parties have agreed that the City is to request a withdrawal of its appeal, the Director shall consent to the request, and the Parties will request that the Tribunal direct the Director to issue an order amending or revoking the Director’s Order as agreed to by the Parties.

10Upon considering the Proposed Minutes of Settlement and hearing submissions from the Parties during the telephone conference call, the Tribunal determined that since the Parties have not entered into a full settlement of the appeals at this time, the Tribunal was not prepared to approve the Proposed Minutes of Settlement, since a partial settlement is not contemplated by the Rules of Practice of the Environmental Review Tribunal. Nevertheless, the Tribunal determined that the process contemplated by the Proposed Minutes of Settlement, including the Terms of Reference, was acceptable and adjourned the appeal to Friday, December 13, 2019 to allow the Parties time to carry out the work contained in the Terms of Reference and for the Parties to provide an update to the Tribunal as to whether a full settlement has been reached.

ORDER

11The Parties are directed to provide an update on the status of this appeal to the Tribunal by Friday, December 13, 2019 with a proposal for next steps. The update may be made in writing, or a request for a telephone conference call may be made through the Tribunal’s Case Coordinator.

Adjournment Granted

Procedural Directions Ordered

“Marlene Cashin”

MARLENE CASHIN

MEMBER

“Justin Duncan”

JUSTIN DUNCAN

VICE-CHAIR

Appendix 1 – Proposed Minutes of Settlement, including Terms of Reference

If there is an attachment referred to in this document, please visit www.elto.gov.on.ca to view the attachment in PDF format.

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