Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 06, 2023

CASE NO(S).: OLT-22-004473

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

Appellant: 2057183 Ontario Limited Appellant: Harry Westendorp Appellant: Pamela Poulin Respondent: Director, Ministry of the Environment, Conservation and Parks

Subject: Order of the Director Description: Various works ordered including not to burn any waste wood materials at the site, the remove of all waste materials, and the installation of two monitoring wells in two different areas of the Site Reference Number: 1-131767953 Property Address: 7811 County Road 6 Municipality/Upper Tier: Elizabethtown-Kitley, Leeds and Grenville OLT Case No.: OLT-22-004473 OLT Lead Case No.: OLT-22-004473 OLT Case Name: Poulin v. Ontario (MECP)

Heard: May 16, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
Harry Westendorp, Pamela Poulin and 2057183 Ontario Limited	J. Douglas Grenkie
Director, Ministry of the Environment, Conservation and Parks	Isabelle O’Connor

MEMORANDUM OF ORAL DECISION DELIVERED BY S. deBOER ON MAY 16, 2023 AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1The matter before the Tribunal was the Appeal under s. 140(1) of the Environmental Protection Act¹ by Harry Westendorp, Pamela Poulin and 2057183 Ontario Limited. The Appeal is of the Ministry of Environment, Conservation and Parks (the “MECP”) Director’s Order No. 1-131767953 (the “Director’s Order”) to stop the burning of any waste wood materials at the site, the removal of all waste materials and the installation of two monitoring wells in the two prescribed areas of the site municipally known as 7811 County Road 6, in Township of Elizabethtown-Kitley (the “Subject Property”).

2The Director’s Order set out 11 items requiring the Appellants to execute certain work and/or refrain from engaging in prescribed activities at the Subject Property. The details of the Items were:

Item No. 1 Compliance Due Date: 09/27/2022

Starting on the day this Order is served, you are ordered not to burn, allow to be burned or cause to be burned any materials at the Site. This Order does not prohibit the burning of Natural wood materials at the Site so long as it is conducted inside of a dwelling or auxiliary building for the purposes of comfort heating.

Item No. 2 Compliance Due Date: 10/31/2022

By October 31, 2022 you are ordered to remove from the Site, through the use of a Ministry Approved or Registered waste hauler, all of the wood materials in Pile #1 as identified in the attached Area Map (Appendix 1). All of this Wood Material shall be brought to and deposited at a Ministry Approved Waste Disposal Site or a Ministry Approval Waste Transfer Station. Weight slips shall be obtained from the receiving site for each load of waste. Any wood material found in Pile #1 that are identified as Natural Wood may remain on the Site.

Item No. 3 Compliance Due Date: 11/04/2022

By November 4, 2022, you are ordered to submit copies of all weight slips received from the disposal of all waste materials in Pile #1 to the undersigned Director. These shall be submitted electronically to Trevor.Dagilis@ontario.ca and environment.kingston@ontario.ca and to Officer Raffael at chris.raffael@ontario.ca, or in hard copy to Trevor Dagilis, MECP, 1259 Gardiners Road, Unit #3, Kingston, Ontario K7P 3J6.

Item No. 4 Compliance Due Date: 09/30/2022

By September 30, 2022 you are ordered to have a Qualified Person complete the soils testing and full delineation of the area for Petroleum Hydrocarbons in the area where CM3 Environmental found "Heavy Weight Lube Oil" in its soil samples from June 2022. This area is further defined in the attached Area map (Appendix 1) as "Area #1".

Item No. 5 Compliance Due Date: 10/14/2022

By October 14, 2022 you are ordered to submit the sample results of the testing and delineation required by Work Item #4 and to submit the interpretation of those results completed by the Qualified Person electronically to Trevor.Dagilis@ontario.ca and environment.kingston@ontario.ca and to Officer Raffael at chris.raffael@ontario.ca, or in hard copy to Trevor Dagilis, MECP, 1259 Gardiners Road, Unit #3, Kingston, Ontario K7P 3J6.

Item No. 6 Compliance Due Date: 10/18/2022

By October 18, 2022 you are required to retain the services of a licenced well installer to install 2 monitoring wells at the Site. One monitoring well shall be in the area identified on the Area map (Provincial Officer's Order Appendix 1) as "Area #1". One monitoring well shall be in the area identified on the Area map (Provincial Officer's Order Appendix 2) as Area #2.

Item No. 7 Compliance Due Date: 11/08/2022

By November 8, 2022 you are ordered to have the retained licenced well installer, install a monitoring well in Area #1 and in Area #2 as identified on the attached Area maps (Appendix 1 and Appendix #2). The exact locations within "Area #1" and Area #2 as well as the depth of the wells shall be determined by the Qualified Person that was retained to complete all sampling on the Site.

Item No. 8 Compliance Due Date: 11/22/2022

By November 22, 2022 you are ordered to have the Qualified Person complete sampling of the installed monitoring wells. Sampling shall include samples taken for Metals; BTEX; PHC fractions F1 through F4 and any other parameters as determined by the Qualified Person.

Item No. 9 Compliance Due Date: 12/14/2022

By December 14, 2022, you are ordered to submit the results from the sampling events of monitoring wells #1 and #2, as well as interpretation of those results as provided by the Qualified Person that completed the sampling. The submission shall be done electronically to Trevor.Dagilis@ontario.ca and environment.kingston@ontario.ca and to Officer Raffael at chris.raffael@ontario.ca, or in hard copy to Trevor Dagilis, MECP, 1259 Gardiners Road, Unit #3, Kingston, Ontario K7P 3J6.

Item No. 10 Compliance Due Date: 10/31/2022

By October 31, 2022, you are ordered to have removed from the site all waste including dimensional lumber, press board, particle board, plywood and any other manufactured wood products that are located in the pile identified as Pile #2 in the attached area map (Appendix #1). These materials are to be removed from the Site with the services of a Ministry Approved or Ministry Registered Waste Hauler. All of the wood waste shall be brought to and deposited at a Ministry approved waste disposal site or a Ministry approved waste transfer station. All Natural Wood (as defined in the Order) found in this pile shall be moved to a different location to allow for future soil sampling in the area directly underneath the current pile location.

Item No. 11 Compliance Due Date: 11/04/2022

By November 4, 2022, you are ordered to submit electronically to Trevor.Dagilis@ontario.ca and environment.kingston@ontario.ca and to Officer Raffael at chris.raffael@ontario.ca, or in hard copy to Trevor Dagilis, MECP, 1259 Gardiners Road, Unit #3, Kingston, Ontario K7P 3J6 all weight tickets form the ministry approved waste disposal or waste transfer site where materials from Pile #2 were disposed of. The tickets shall show the date of disposal, type of waste disposed of, and the amount of waste from each load delivered.

BACKGROUND

3The Subject Property is a large rural property which operates as a farm with a property size in excess of 120 hectares. The Appellants, Harold Westendorp and Pamela Poulin reside in the existing dwelling that is located on the Subject Property.

4The history of the concerns raised by the MECP on the Subject Property date back to 2017 when the MECP was made aware of a large amount of waste materials that were being stored on the Subject Lands. The Appellants did not hold a licence to receive, store or process waste. Waste materials of concern by the MECP included but were not limited to wood, scrap metal, asphalt, concrete, old vehicles and various liquids that were stored in barrels.

5Further background and history of the previous MECP’s orders and appeals by the Parties can be found in Poulin v. Ontario (MECP), 2023 CanLII 26260 (ON LT).

THE HEARING AND SETTLEMENT

6Prior to the commencement of the Hearing, the Tribunal was made aware that settlement discussions had been occurring between the Parties. At the commencement of the Hearing, the Parties made a request to the Tribunal to adjourn for one day to allow for further discussions to occur for the potential finalization of a settlement.

7The Parties agreed that a one-day postponement of the hearing would allow for enough time for the Parties to resolve any outstanding issues. The Parties agreed that if a settlement was not reached by the commencement of the hearing the following day, there would still be enough time to hear the merits of the issues before the Tribunal.

8The Tribunal agreed with the Parties and ruled that a one-day postponement of the Hearing would be sufficient to allow for further settlement discussions to occur.

9The Tribunal was informed later that day that a settlement had been reached between the Parties and the settlement would be presented to the Tribunal prior to the recommencement of the hearing. It was the request of the Parties that the Tribunal review and approve the settlement presented before it.

10The settlement revised the original Director’s Order of 11 items to a newly agreed upon list of seven items listed below:

Item 1 - One shallow groundwater monitoring well shall be installed in bedrock so that the monitoring well screen intersects the water table (expected to be encountered in the upper 5 to 7 metres below ground surface). The monitoring well shall be constructed and sampled following the requirements in Ontario Regulation 153/04. The monitoring well shall be located within Area 1 as identified in the attached Appendix 1 at the location shown on Figure 1 (Area 1 Groundwater Sampling Location). The monitoring well shall be sampled on two occasions, to assess seasonal variability and following appropriate well development and purging, during spring and fall 2023 (or fall 2023/spring 2024). The monitoring well shall be tested with an interface probe during each monitoring event to determine if light or dense non-aqueous phase liquids are present in the well. The thickness of these liquids shall be measured and documented if they are present. Static groundwater elevation shall also be measured and documented prior to sampling events. The water samples shall be analyzed for Petroleum Hydrocarbon ("PHC"), Fractions F1 to F4, the full/standard list of Volatile Organic Compounds ("VOCs") including benzene, toluene, ethylbenzene and xylenes and the full/standard list of metal parameters including arsenic, copper, chromium and lead. The well shall be installed and sampled by September 30th, 2023. Monitoring well logs shall be prepared and provided to the ministry following well installation along with monitoring results when they become available. The ministry shall also be provided access to the site in order to take groundwater samples from the well at the same time as the Qualified Person for the same parameters. The Qualified Person shall arrange for a mutually agreeable sampling time with the ministry.

Item 2 - All wood in Pile #1, as indicated in the attached Appendix 1, that is not natural wood (trees, stumps, branches, leaves) shall be removed from the site by a licensed waste hauler for disposal at a licensed waste disposal site by December 31, 2024. Waste disposal records and photographs shall be provided to the ministry. Natural wood materials set aside from Pile #1 shall be available for inspection prior to burning or other processing. Any processing on-site shall be conducted with all necessary approvals.

Item 3 -The material in Pile #2, except any natural wood (branches, stumps, leaves) or metal materials that can be easily removed and set aside, shall be removed from the site by a licensed waste hauler for disposal at a licensed waste disposal site by December 31, 2023. Waste disposal records and photographs shall be provided to the ministry. Any metal materials present in Pile #2 shall be set aside for recycling. Natural wood removed from Pile #2 shall be set aside for inspection prior to burning or shredding. Any processing on-site shall be conducted with all necessary approvals.

Item 4 - All metal materials at the site shall be sorted. Usable metal materials (beams, siding, roofing, vehicles, antique farm equipment, rebar, chain link fencing etc.) may remain on-site. By June 30, 2025, all other metal products that are not usable shall be placed in a metal bin and disposed of as recyclable metals. Weigh bills for the material shall be provided to the Director. Any fuel in any non-usable vehicles remaining on-site after June 30, 2025, shall be removed from the vehicle.

Item 5 - One shallow groundwater monitoring well shall be installed in bedrock so that the monitoring well screen intersects the water table (expected to be encountered in the upper 5 to 7 metres below ground surface). The monitoring well shall be constructed and sampled following the requirements in Ontario Regulation 153/04. The monitoring well shall be located inside Area #2, as identified in attached Appendix 2, as shown in Figure 2 (Area 2 Groundwater Sampling Location) as close as physically possible to the original location of the used oil above-ground storage tank ("AST"). The monitoring well shall be sampled on two occasions to assess seasonal variability and following appropriate well development and purging, ideally during spring and fall 2023 (fall 2023/spring 2024). The monitoring well shall be tested with an interface probe during each monitoring event to determine if light or dense non­aqueous phase liquids are present in the well. The thickness of these liquids shall be measured and documented if they are present. Static groundwater elevation will also be measured and documented prior to sampling events. The water samples shall be analyzed for Petroleum Hydrocarbon ("PHC") Fractions F1 to F4, the full/standard list of Volatile Organic Compounds ("VOCs") including benzene, toluene, ethylbenzene and xylenes and the full/standard list of metal parameters including arsenic, copper, chromium and lead. The well shall be installed and sampled by September 30th, 2023. Monitoring well logs shall be prepared and provided to the ministry following well installation along with monitoring results when they become available. The ministry shall also be provided access to the site to take groundwater samples from the well at the same time as the Qualified Person for the same parameters. The Qualified Person shall arrange for a mutually agreeable sampling time with the ministry.

Item 6 -The "soil pile", located in Area 2, as identified in Appendix 2, shall be assessed by a Qualified Person to determine the composition and quality of the material in the pile. The assessment shall take place prior to December 31, 2023 and include physical identification of the material at appropriate intervals to identify the presence and proportion of waste material, soil material, any observable impacted material (e.g. soil impacted by petroleum hydrocarbons) and other material that may be encountered. The assessment shall also include sampling and laboratory analysis of non-waste material (e.g. soil) at an appropriate frequency for petroleum hydrocarbons fractions F1 to F4 and benzene, toluene, ethylbenzene and xylenes, and metals following field screening of this material. Based on this assessment, the Qualified Person shall provide the Director with a plan for managing the material and recommendations for any further actions that may be required. Alternatively, if the Qualified Person determines that the material shall be treated as waste material then the material shall be appropriately sampled to support disposal at a licensed waste disposal facility. No actions shall be taken with respect to the soil pile until written directions from the Director are provided.

Item 7 - No burning of any materials shall take place at the site until the ministry is satisfied that all wood materials in Piles 1 and 2, except brush, stumps, leaves, branches, are removed from the site. Natural wood materials may be burned inside of a dwelling or auxiliary building for the purposes of comfort heating. Natural wood materials resulting from agricultural clearing between fields may be burned after inspection by the ministry and appropriate approvals from the Elizabethtown-Kitley Fire Department are obtained.

ANALYSIS AND FINDINGS

11The Tribunal reviewed the terms of the proposed amendments to the Director’s Order with the Parties. The proposed Order of the Tribunal would revoke the previous 11 Items and replace them with the seven (7) updated Items noted above, including new dates in which the specific Items need to be satisfied. Included with the settlement is an agreement between the Parties concerning areas of interest on the Subject Property which focus on specific physical sites that need removal or remediation (Appendix 1 and Appendix 2 of Schedule A attached to this Order and Decision). The Tribunal is satisfied that the revised order as presented offers a reasonable solution that is in the public interest.

12The Tribunal is satisfied that the terms of the revised Director’s Order will allow MECP staff to monitor the progress of the terms of the Order while minimizing financial hardship to the Appellants.

13The Tribunal is satisfied that the revised Order provides for the protection and conservation of the natural environment by ensuring that the proper handling and disposal of waste is completed within the compliance and the statutory requirements of the EPA. Included in these items of compliance is the installation of the groundwater monitoring wells.

14The Tribunal is satisfied that the settlement is a fair and equitable resolution and that the deadlines and conditions imposed by the revised Director’s Order can be met by the Appellants.

ORDER

15THE TRIBUNAL ORDERS that the appeal of the Director’s Order is allowed in part and that the Work Items set out in the Director’s Order are amended as set out in paragraph 10 above of this Order and Decision.

“S. deBoer”

S. debOER

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.

Footnotes

1. 1R.S.O. 1990, c. E. 19, as amended