Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 09, 2023

CASE NO(S).: OLT-23-000630

PROCEEDING COMMENCED UNDER subsection 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended and subsection 100(4) of the Ontario Water Resources Act, R.S.O. c. O.40

Appellant: Steve Charest

Appellant: King & Benton Canal Bank Regeneration Lands Inc.

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

Subject: Order of the Director

Description: To perform work to prevent or reduce the discharge of contaminants of concern (COCs) into the natural environment and to prevent impairment to the water

Reference No.: 1-209410483

Property Address/Description: 65 Canal Bank Street

Municipality/Upper Tier: Welland/Niagara

OLT Case No.: OLT-23-000630

OLT Lead Case No: OLT-23-000630

OLT Case Name: Charest v. Ontario (Environment, Conservation and Parks)

Heard: October 19, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
Director, Ministry of the Environment, Conservation and Parks	Courtney Barnes
King & Benton Canal Bank Regeneration Lands Inc. and Steve Charest	John Georgakopoulos Raeya Jackiw

MEMORANDUM OF ORAL DECISION DELIVERED BY D. CHIPMAN ON OCTOBER 19, 2023, AND ORDER OF THE TRIBUNAL

INTRODUCTION

1On August 17, 2023, the Tribunal heard an interim stay motion and ordered that the Appellant’s motion for an interim stay be granted. Having received notice from the Parties that they have agreed to resolve the Stay Motion, on consent, and on a no costs basis, the Parties are now requesting that the Tribunal convert the Stay Motion into a Settlement Hearing for the Stay Motion.

2The settlement of the stay motion heard by the Tribunal relates to Order No. 1-209410483 issued by the Director (“Director”), Ministry of the Environment, Conservation and Parks (“Ministry”) against King & Benton Canal Bank Regeneration Lands Inc. and Steve Charest (“Appellants”) regarding sewage works on the lands located at 65 Canal Bank Street (“subject property”) in the City of Welland.

3The subject property has a history of industrial uses. The Orderees operate a sewage works at the subject site. The site is a decommissioned historic industrial site that the Orderees intend to redevelop into an Electric Vehicle (“EV”) Innovation Business Park including EV battery manufacturing. A Provincial Officer’s Order was issued to the Orderees on May 4, 2023; the Orderees were granted a stay and extension of time on May 18, 2023; and on June 13, 2023, the Director issued the Director’s Order to the Orderees.

4The soils on the subject property have been found to contain various materials that may cause environmental harm if they are discharged from the property. The Director submits that the extraction of these materials increases the risk that the materials on-site may become exposed to the elements, resulting in contaminated water discharging off-site. The existing sewage works on the subject property has been in operation for several decades and is intended to collect, transmit, treat and dispose of stormwater run-off. The Director submits that the existing sewage works is inadequate, and as a result the following changes are needed.

5The Director’s Order was issued as follows:

Item No. 1 Compliance Due Date: June 13, 2023 Upon service of this Director's Order and until notified in writing by the undersigned Director, the Orderees shall not discharge or cause or permit the discharge of sewage into the natural environment, including into or in any waters from the site, unless in accordance with an ECA that has effluent limit criteria for the following COCs: i. trivalent chromium (CrIll); ii. hexavalent chromium (CrVI); and iii. pH

Item No. 2 Compliance Due Date: June 20, 2023 Commencing on June 20, 2023, to prevent any off-site discharge, remove sewage from the site using a Waste Management System that is authorized under the Environmental Protection Act to manage such sewage (unless approved to pump directly to a Sewage Works), and deposit the sewage at a Sewage Works or Waste Disposal Site(s) approved to accept the sewage.

Item No. 3 Compliance Due Date: June 20, 2023 a) By June 20, 2023, submit written confirmation to the Director by email to environment.niagara@ontario.ca of the name and ECA number or EASR registration number of the Waste Management System(s) used/will be used to remove and transport the sewage from the site and the Sewage Works' or Waste Disposal Site's name and ECA number that accepts/will accept the removed sewage. b) Within 3 days of any change to the Waste Management System(s), Sewage Works or Waste Disposal Site names and ECAs or EASR registration numbers confirmed in response to Item No. 3 a), submit written confirmation of the changes to the Director at environment.niagara@ontario.ca.

Item No. 4 Compliance Due Date: June 13, 2023 Upon service of this Director's Order and until notified in writing by the undersigned Director, the Orderees shall ensure that at all times the Freeboard in the retention pond is at least 60 cm.

Item No. 5 Compliance Due Date: June 13, 2023 Upon service of this Director's Order, the Orderees shall conduct inspections of the sewage works at the site ("the inspections") at least once per week, and on each day when there is precipitation and on each day sewage is removed from the site. The Orderees shall document the inspections in a written log that includes the following information at a minimum: a) date and time of the inspection; b) documented measurement of retention pond Freeboard; c) documented inspection of the overflow ditch from the retention pond to assess for discharges from the retention pond, if the retention pond Freeboard is less than 30 cm at the start of the inspection; d) documented volumes of sewage removed and dates of removal from the site to ensure a minimum 60 cm of Freeboard in the retention pond is maintained; e) documented observations describing any spills, as defined in Part X of the EPA from the sewage works, including flows of sewage through the retention pond overflow ditch; f) date and time of any reports to the Spills Action Centre (1-800-268-6060), as required under the Part X of the Environmental Protection Act; g) documented description of any action(s) taken to prevent, eliminate or ameliorate any adverse effect; and h) printed name and signature of the person conducting the inspection.

Item No. 6 Compliance Due Date: June 23, 2023 Commencing on June 23th, 2023, and on each Friday thereafter until notified in writing by the undersigned Director, the Orderees shall submit a weekly report to the undersigned Director at environment.niagara@ontario.ca that includes: a) a summary of the inspections undertaken in the previous seven (7) days; b) copies of the log required in Item 5; and c) all documentation (i.e., manifests, bills of lading) showing the volume and means of sewage removal and disposal in the previous seven (7) days.

Item No. 7 Compliance Due Date: June 13, 2023 Upon service of this Director's Order, the Orderees and any other person with an interest in the site shall, before dealing with the site in any way, give a copy of this Director's Order, including any amendments thereto, to every person who will acquire an interest in the site as a result of the dealing.

Item No. 8 Compliance Due Date: July 7, 2023 On or before July 7, 2023, provide to the undersigned Director by email at Kim.Groombridge@ontario.ca and at environment.niagara@ontario.ca an "Acknowledgement and Direction", prepared by legal counsel, completed as described in the 'Certificate of Requirement' section of the Reasons for the Response below.

Item No. 9 Within 5 days of receipt from the undersigned Director of a signed "Acknowledgement and Direction", register the Certificate of Requirement on title to the site in the appropriate land registry office.

Item No. 10 Within 2 days of registration of the Certificate of Requirement, provide written verification to the undersigned Director by email at Kim.Groombridge@ontario.ca and at environment.niagara@ontario.ca, a copy of the registered document together with a copy of the Parcel Register for the Property Identifier Number confirming the registration.

6The Tribunal heard that the Parties have agreed to resolve the interim stay motion of August 17, 2023, as per the following:

a) Items 8, 9, and 10 of the Director’s Order are stayed, pending disposition of the appeal on its merits; b) further to Item 7 of the Director’s Order, the Appellants will notify the Director at least 30 days before a third party acquires an interest in 65 Canal Bank Street, Welland, Ontario, L3B 5R8, pending disposition of the appeal on its merits; and, c) no other items, terms or conditions of the Order are stayed.

7The Instrument Holder and the Director submitted the granting of the settlement of the interim stay motion pending the hearing, will allow the Parties to move this matter forward to a Case Management Conference (“CMC”) at which time a Procedural Order can be discussed and a date secured for a hearing of the merits.

8The Parties are to submit a draft Procedural Order on or before Wednesday, January 10, 2024, to the Case Coordinator for the consideration of the Tribunal.

9A CMC will commence on Monday, January 15, 2024, at 10 a.m. by Video Hearing (“VH”).

10Parties and Participants are asked to log into the VH at least 15 minutes before the start of the event to test their video and audio connections:

https://global.gotomeeting.com/join/979388733

Access code: 979-388-733

11Parties and Participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html

12Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: (Toll Free) 1-888-299-1889 or +1 (647) 497-9373. The Access Code is 979-388-733.

13Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the VH to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

ORDER

14The Tribunal Orders that a Case Management Conference will commence on Monday, January 15, 2024, at 10 a.m. by video hearing.

15The Tribunal Orders that following Work Items will proceed as follows:

a) Items 8, 9, and 10 of the Director’s Order are stayed, pending disposition of the appeal on its merits; b) further to Item 7 of the Director’s Order, the Appellants will notify the Director at least 30 days before a third party acquires an interest in 65 Canal Bank Street, Welland, Ontario, L3B 5R8, pending disposition of the appeal on its merits; and, c) no other items, terms or conditions of the Order are stayed.

16This Member is not seized.

17No further notice is required.

“D. Chipman”

D. CHIPMAN 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.