Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 02, 2021
CASE NO(S).: 11-061
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19
Appellant: See Appendix 1 - Appellant List (11-061)
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject of appeal: Order to carry out work and provide financial assurance with respect to the Mud Lake Waste Disposal Site
Reference No.: 6248-8GRHU2
Property Address/Description: Mud Lake Waste Disposal Site
Municipality: City of Kenora
Upper Tier: Kenora District
ERT Case No.: 11-061
ERT Case Name: Dea v. Ontario (Environment, Conservation and Parks)
Heard: July 6, 2021 by video hearing
APPEARANCES:
Parties
Counsel
AbiBow Canada Inc.
Tyson Dyck
AbitibiBowater Inc.
Abitibi-Consolidated Company of Canada
Allen Dea
Zachary Silver and Alexandria Pike
Alain Grandmont
William G. Harvey
David J. Paterson
Pierre Rougeau
Jacques P. Vachon
OfficeMax Incorporated
Jennifer Fairfax and Sadie-Rae Werner (summer student)
Director, Ministry of the Environment, Conservation and Parks
Nadine Harris, Justin Jacobs, Verity Thomson (summer student) and Jayden Rae (summer student)
DECISION DELIVERED BY HUGH S. WILKINS AND ORDER OF THE TRIBUNAL
INTRODUCTION
1On May 13, 2011, the Director, Ministry of the Environment, Conservation and Parks (“MECP”) issued Director’s Order No. 6248-8GRHU2 (“Director’s Order”) regarding the Mud Lake Waste Disposal Site (“waste disposal site”) in the City of Kenora (“City”). The Director’s Order was appealed to the Environmental Review Tribunal (now the Ontario Land Tribunal) under s. 140(1) of the Environmental Protection Act (“EPA”). The Parties listed in Appendix 1 to this Decision are the Appellants (“Appellants”).
2The waste disposal site was created in 1973 to receive non-hazardous solid waste from a former pulp and paper mill. The waste disposal site reached its maximum working capacity in 1986 at which time it stopped receiving waste. A leachate collection and pumping system was installed in 1996 and the site was formally closed in 2003 with the installation of an impermeable clay cover cap, sloping and seeding.
3Ongoing inspection and maintenance of the waste disposal site are necessary to ensure the continuing drainage of surface water and leachate, the pumping of this mixture to a nearby municipal sewage plant for treatment, and the continuing integrity and proper functioning of the site.
4The waste disposal site has been owned by various companies over the years. It is currently owned by 4513541 Canada Inc., which is a corporation in receivership with no shareholders, directors, officers or employees. The Appellants include AbiBow Canada Inc., AbitibiBowater Inc., and Abitibi-Consolidated Company of Canada, which are predecessor companies of Resolute Forest Products Inc. and Resolute FP Canada Inc. (“Resolute Canada”), and OfficeMax Incorporated. They are past owners or companies associated with the waste disposal site. Six persons who were at one time board members of AbitibiBowater Inc., and were named as Orderees, also appealed.
5The Director’s Order requires the taking of steps to ensure that maintenance, monitoring, and reporting work is carried out regarding the waste disposal site. The Director’s Order includes work items requiring:
a weekly inspection program to ensure that surface water and leachate collection systems and the leachate pumping station are operating correctly;
an annual inspection of and reporting on the integrity of landfill components such as the cover, leachate seeps, and perimeter ditches;
a surface water monitoring program and reporting;
a groundwater monitoring program and reporting;
specific surface water quality monitoring and reporting when surface water runoff exceeds the capacity of the leachate collection system;
annual monitoring and reporting describing the site conditions, including the surface water monitoring locations, a description of surface water sampling, an analysis and assessment of monitoring data, review of the adequacy of the monitoring programs, a summary of inspections, and a summary of any complaints regarding the maintenance of the site and any actions or responses;
arrangements with the City to accept leachate for treatment and disposal at the City’s wastewater treatment plant;
submission of $1,000,000.00 in financial assurance and the submission of a financial assurance re-evaluation regarding post-closure inspection, maintenance and monitoring of the waste disposal site; and,
4513541 Canada Inc. to permit access to the waste disposal site for the purpose of complying with the Director’s Order.
6In late 2011, the Tribunal stayed specific items in the Director’s Order and approved an Interim Order pending the outcome or final resolution of the appeals. The Tribunal subsequently granted a series of adjournments to permit ongoing work at the waste disposal site while settlement discussions were engaged between the Parties. In January 2014, the Tribunal issued an Amended Interim Order to continue the stay of financial assurance requirements and make changes to the timing and frequency of specific work items.
7On May 6, 2021, the Tribunal held a Case Management Conference (“CMC”) at which it was informed by the Parties that they had reached a proposed settlement. At the CMC, the City, Wanda Marshall, and Joyce McLeod each requested, and was granted, Participant status.
8On July 6, 2021, the Tribunal held a settlement hearing to address the proposed settlement and to determine whether the Director’s Order should be revoked and whether the proceedings should be dismissed.
ISSUES
9The issues to be addressed are whether, based on the proposed settlement, all statutory requirements and the public interest are satisfied, as required under Rule 12.1 of the Tribunal’s Rules of Practice and Practice Directions (“Rules”), and whether the Tribunal should direct the Director to revoke the Director’s Order and dismiss the proceedings.
Confidentiality Order
10At the settlement hearing, the Parties submitted that the settlement agreement contains confidential information. They requested that it not be disclosed and that the agreement neither form part of the Tribunal’s record nor the public record.
11The settlement hearing was convened under Rule 12.1 of the Tribunal’s Rules. This Rule permits the Tribunal to hold a hearing on the terms of a settlement. The Tribunal found that to hold a hearing on the terms of a settlement, the terms of the settlement must be disclosed to the Tribunal. Therefore, the Tribunal directed that the settlement agreement be disclosed to the Tribunal.
12The Tribunal reviewed the settlement agreement and found that it contains information that is of such a nature that the public interest and the interest of the person affected outweighs the desirability of adhering to the principle that documents filed in a proceeding should be available to the public. Pursuant to Rule 22.2 of the Tribunal’s Rules, the Tribunal ordered that the settlement agreement document be treated as confidential and not be disclosed to the public.
EVIDENCE AND SUBMISSIONS
Evidence and Submissions of the MECP and the Appellants
13In support of the proposed settlement, the Director filed the affidavit of Trina Rawn, which was affirmed on June 21, 2021. Ms. Rawn is the Director who issued the Director’s Order. At the settlement hearing, she also provided oral evidence in response to questions posed by the Tribunal.
14Resolute Canada filed an affidavit affirmed by Michael P. Smith on June 21, 2021. Mr. Smith is a hydrogeologist. In his affidavit, he described the waste disposal site and the work plan and attached a report summarizing data and the conditions at the site. He gave brief testimony at the settlement hearing supporting Ms. Rawn’s evidence.
15Under the proposed settlement, the Parties ask that the Tribunal direct the Director to revoke the Director’s Order and that the Tribunal dismiss the proceedings. Ms. Rawn stated that under the proposed settlement, the Parties would implement a work plan to be carried out over at least two years. It is designed to continue the inspection, maintenance, monitoring and reporting work required by the Amended Interim Order, provide for an enhanced surface water monitoring program, prepare an assimilative capacity study assessment to provide information for future discussions on the long-term maintenance of the waste disposal site, prepare studies and assess the feasibility of whether an alternative long-term leachate management strategy is appropriate for the waste disposal site, and undertake annual reporting and prepare a final report. Under the proposed settlement, Resolute Canada would ensure that the work plan is carried out. The costs would be shared equally by Resolute Canada and OfficeMax Incorporated.
16Ms. Rawn stated that the proposed settlement sets out specific requirements regarding the convening of a final meeting, financial assurance, the release of the six individuals named in the Director’s Order from any civil or regulatory liability, and other issues. It requires that:
within three months of the completion of the final report, the MECP, Resolute Canada and OfficeMax Incorporated are to meet to discuss next steps, including a review of the remaining long-term monitoring, maintenance and other work, a re-evaluation of the financial assurance requirements, and the possibility of relieving any of the Appellants from long-term responsibility for the waste disposal site;
$1,000,000.00 will be added to the approximately $258,748.00 presently held as financial assurance by MECP;
MECP issue a provincial officer’s order to 4513541 Canada Inc. to allow Resolute Canada and its contractors and consultants access to the waste disposal site to undertake the proposed work plan;
the MECP will not issue, except in certain circumstances, any environmental orders regarding the waste disposal site to Resolute Canada, the AbitibiBowater Companies, OfficeMax Incorporated or their respective directors and officers to carry out any additional work over and above the work plan or to contribute any additional financial assurance until after the final meeting;
the MECP will release the six individuals named in the Director’s Order from any civil or regulatory liability related to the waste disposal site or the presence or discharge of contaminants from it;
the implementation of the work plan is without prejudice to any argument that an Appellant may have regarding whether it has or had charge, management or control over the waste disposal site property and associated undertakings; and,
nothing in the proposed settlement purports to exempt Resolute Canada or OfficeMax Incorporated from any obligations imposed under environmental legislation or constitutes a commitment not to prosecute any person or entity under applicable environmental legislation.
17Regarding the proposed release of the six individuals named in the Director’s Order, Ms. Rawn stated that these individuals are no longer involved with the waste disposal site and that the corporate Appellants will remain involved and have the resources to address the maintenance of the site.
18Ms. Rawn said the proposed settlement is in the public interest and is consistent with the purpose of the EPA in that:
it concludes these proceedings and avoids lengthy and complex litigation that would require significant public and private resources;
it increases the financial assurance to be held by MECP by $1,000,000.00, which she stated is a sufficient amount;
the work plan updates and expands on the work required in the Director’s Order and it requires further data collection and assessment that will increase the Parties understanding of the site conditions and inform the scope of any further work or financial assurance that may be required;
it does not unduly fetter the authority of the MECP to take future regulatory actions as may be warranted;
it creates a process for the MECP, Resolute Canada and OfficeMax Incorporated to continue discussions regarding the long-term maintenance, monitoring and other work that may be required at the waste disposal site without the need to resort to litigation; and,
the proposed settlement will prevent harm to the natural environment through continued maintenance and monitoring.
19Based on these outcomes of the proposed settlement, Ms. Rawn stated that she is satisfied that the proposed settlement is in the public interest and is protective of the natural environment and human health.
20The Appellants support the MECP’s submissions.
Submissions of the Participants
21The City filed written submissions stating that given that 4513541 Canada Inc. is a corporation in receivership, no municipal taxes have been paid on the waste disposal site’s lands for more than 10 years. It submitted that the City has a lien on the lands and a tax sale may be initiated. It also submitted that the leachate from the waste disposal site is treated by the City’s municipal wastewater treatment plant at subsidized rates. It submitted that it is not a party to the settlement agreement or the proceedings and nothing in the proposed settlement binds the City or fetters or prevents the City from exercising any of its rights. It requested that it be provided notice and an opportunity for consultations should any steps be taken that may affect its lien or the treatment of leachate.
22In response to questions from the Tribunal, Ms. Marshall submitted that greater transparency in the process is needed and that the Parties should be held accountable for completing the requirements in the Director’s Order. Ms. McLeod submitted that the public was not given sufficient time to respond to the proposed settlement and it is difficult to have faith or trust in the process.
ANALYSIS AND FINDINGS
23Rule 12.1 of the Tribunal’s Rules sets out the procedure where there is a proposed settlement before a hearing event. It states:
12.1 The Tribunal may hold a hearing on the terms of a settlement if the parties in the proceeding agree to a settlement prior to a hearing event. The Tribunal may issue any directions to the parties necessary to ensure compliance with all statutory requirements, or to assist the Tribunal, prior to convening the settlement hearing. If all statutory requirements and the public interest are satisfied, the Tribunal may issue an order approving the settlement, with any necessary amendments.
24Under Rule 12.1, the Tribunal may issue an order approving a proposed settlement, with any necessary amendments, if all statutory requirements and the public interest are satisfied. On considering the relevant statutory provisions and the public interest, the Tribunal has the discretion to confirm, alter or revoke the Director’s Order under s. 145.2(1) of the EPA and the discretion to either continue with or dismiss the proceedings. The words “approving the settlement” as expressed in Rule 12.1 relate to whether all statutory requirements and the public interest are satisfied. This informs the Tribunal on whether the instrument or decision in question should be confirmed, altered, or revoked and whether the proceeding should be dismissed. This wording in Rule 12.1 does not generally extend to an approval or endorsement of the specific terms and conditions of a proposed settlement, particularly in a case such as the present where the settlement agreement document contains confidential information.
25The applicable statutory requirements in the present case are contained in the EPA. The purpose of the EPA, as set out in its s. 3, is to provide for the protection and conservation of the natural environment. The Director’s Order was issued under s. 18, s. 44, and s. 132 of the EPA. The objectives of s. 18 are to prevent or reduce the risk of a discharge of a contaminant into the natural environment and to prevent, decrease or eliminate an adverse effect that may result from the discharge of a contaminant. The applicable objectives of s. 44 are to ensure that waste disposal sites are properly maintained and s. 132 requires the provision of appropriate financial assurance for the performance of work under an order and/or to prevent adverse effects following the closing of works.
26Based on Ms. Rawn’s uncontradicted evidence, the Tribunal finds that the proposed settlement satisfies all the statutory requirements in the EPA and is in the public interest. The proposed settlement results in the continuation and expansion of the work required under the Director’s Order, the continuation of monitoring, sampling, and maintenance at the waste disposal site, and increased financial assurance to ensure that necessary work is completed. Furthermore, it directs resources to the continuation of the work at the waste disposal site to help ensure the protection and conservation of the natural environment. The proposed settlement also results in a process for continuing discussions on future steps and ensures that the polluter pays principle is applied. Based on these considerations, the Tribunal finds that the proposed settlement is consistent with the purpose and provisions of the EPA and is in the public interest. It finds that the proposed settlement ensures that all statutory requirements are satisfied.
27The Tribunal finds that through the work items and financial assurance requirements set out in the proposed settlement, the main Appellants are accountable for ensuring that the work contemplated under the Director’s Order is both continued and expanded upon. The Tribunal notes the statutory notice requirements for these proceedings have been complied with and that the proposed settlement does not unduly constrain the MECP from taking further regulatory actions in the future, if needed. It also notes that the City will receive notice through the Environmental Registry of further orders or approvals by the MECP.
28Subsequent to the settlement hearing, the Director informed the Tribunal on July 20, 2021 that the MECP has received the additional financial assurance agreed to under the settlement agreement.
29Based on the proposed settlement, the Tribunal finds that the Director’s Order should be revoked, and the proceedings should be dismissed.
ORDER
30The Tribunal orders that the settlement agreement document be treated as confidential and not be disclosed to the public.
31The Tribunal orders that the appeals are allowed, in part, and directs the Director to revoke the Director’s Order.
32The Tribunal orders that the proceedings are dismissed.
“Hugh S. Wilkins”
HUGH S. WILKINS
MEMBER
Ontario Land Tribunal
Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.
Appendix 1
Appellant List (11-061)
Appellant Name
File No.
AbiBow Canada Inc.
11-058
AbitibiBowater Inc.
11-059
Abitibi-Consolidated Company of Canada
11-060
Allen Dea
11-061
Alain Grandmont
11-062
William G. Harvey
11-063
David J. Paterson
11-064
Pierre Rougeau
11-065
Jacques P. Vachon
11-066
OfficeMax Incorporated
11-074