Gerdau Ameristeel Corporation v. Ontario (Environment, Conservation and Parks), 2020 ONERT 5710

Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: January 22, 2020

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: June 20 and November 18, 2019 by telephone conference call

Parties

Counsel

Gerdau Ameristeel Corporation

Marc McAree and Matthew Gardner

Director, Ministry of the Environment, Conservation and Parks

Nicholas Adamson and Mitchel Boughs

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, Robert Wrigley, MECP Director, issued Director’s Order No. 3853-AQBTKH-DO (“Director’s Order”) on September 7, 2017. The Director’s Order altered the P.O. Order but stated that the “essential elements” of the P.O. Order were maintained, being the “requirements to delineate, report, recommend and implement” a remedial action plan.

5Gerdau 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.

6The 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. 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 the other 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.

7At 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 issues. They requested another adjournment. Subsequently, the Tribunal held TCCs on April 23, June 14 and September 26, 2018 to receive status updates.

8On February 7, 2019, Nicholas Adamson, counsel for 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. By Order of March 21, 2019, the Tribunal approved 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 remained under appeal.

9Item 8(b) requires 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 were to be excavated from City-owned property and transferred to the Site, where the material was to be dewatered and the water treated. The revised RAP provided that all wastes generated from the remediation work were to be handled in accordance with the General Waste Management Regulation, R.R.O. 1990, Regulation 347 (“Reg. 347”), made under the EPA. Waste soils and sediments were to be tested and then removed from the Site and transported by MECP-approved waste haulers to a MECP-approved disposal facility.

10Item 10 required the Appellant to provide an alternate source of irrigation water to the City golf course.

11At the TCC of February 14, 2019, the parties indicated they would continue to work together to ensure resolution of the issues under Items 8(b) and 10. Thus, the Tribunal scheduled a further TCC for June 20, 2019 to provide an update on the work.

12A further TCC was held on November 18, 2019, at which time the parties advised the Tribunal that all remedial work had been completed. In regard to Item 8(b), the parties advised that all dredged sediment from the pond had been dewatered through the summer and the sediment was removed to disposal as required by the revised RAP. This was completed by October 25, 2019.

13In regard to Item 10, the results of water sampling undertaken in June 2019 indicated that there were no remaining contamination issues with regard to the pond water, and it could be used for irrigation of the golf course. There was no longer a need for the Appellant to provide an alternative water source for the irrigation of the golf course.

14Based on the resolution of the remaining items under the Director’s Order, the Director sought approval to withdraw Item 10 pursuant to Rule 201 of the Tribunal’s Rules of Practice (the “Rules”), and the Appellant would withdraw its appeal of Item 8(b). This settlement approach was agreed to by the Director and the Appellant and would have the effect of resolving all the remaining matters before the Tribunal.

Issue

15The issue is whether the settlement agreement is consistent with the purpose and provisions of the EPA and is in the public interest.

Relevant Legislation and Rule

16 EPA 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.

17Rule 201 of the Tribunal’s Rules provides:

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

18Item 10 of the Director’s Order relates to the provision of an alternative source of irrigation water for the golf course. The Director submitted that he is of the view that this work item should be withdrawn because it is no longer necessary. Remediation of the golf course irrigation pond was completed over the winter of 2019, and follow-up sampling confirmed that use of the pond to irrigate the golf course would not pose a risk of entraining PCB contaminated sediment onto the golf course. The MECP advised the golf course prior to the summer of 2019 that it could safely use the pond to irrigate the golf course. The Director advises that it is his understanding that the golf course has used the irrigation pond for irrigation water throughout this past summer of 2019. As such, the Director is of the view that Item 10 is no longer necessary. The parties submitted that the withdrawal of Item 10 from the Director’s Order is consistent with the purpose and provisions of the EPA and is in the public interest.

19Regarding Item 8(b), the Director advised that it is his understanding that all sediment removed from the impacted drain during the remediation process has been dewatered and removed from the Site for disposal in accordance with Regulation 347, as of October 25, 2019. Having already completed the required work under Item 8(b), Gerdau advised of the withdrawal of its appeal of Item 8(b) by way of email to the Tribunal dated November 18, 2019.

20There are no participants or presenters in this proceeding.

21With the withdrawal of Item 10, and the withdrawal of the appeal of Item 8(b), the issues in this proceeding are resolved. In accordance with Rule 201, the Tribunal finds that the settlement agreement that contemplates the Director’s withdrawal of Item 10 from the Director’s Order and Gerdau’s withdrawal of its appeal of Item 8(b) is consistent with the purposes and provisions of the EPA and is in the public interest.

ORDER

22The Tribunal directs the Director to remove Item 10 from the Director’s Amending Order No. 3853-AQBTKH-DO.

23The Tribunal accepts the withdrawal of the appeal of Item 8(b) of the Director’s Amending Order No. 3853-AQBTKH-DO.

24The Tribunal orders that the proceeding is dismissed pursuant to Rule 201 of the Tribunal’s Rules.

Director’s Order Amended

Appeal Withdrawn

Proceeding Dismissed

“Helen Jackson”

HELEN JACKSON

MEMBER

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Environmental Review Tribunal

A constituent tribunal of Tribunals Ontario - Environment and Land Division

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