Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: November 13, 2024
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: November 7, 2024 by Video Hearing
APPEARANCES:
Parties
Counsel
King & Benton Canal Bank Regeneration Lands Inc. and Steve Charest
Alessia Petricone-Westwood John Georgakopoulos (in absentia)
Director, Ministry of the Environment, Conservation, and Parks
Nadine Harris Shane Sukerman Courtney Barnes
MEMORANDUM OF ORAL DECISION DELIVERED BY A. SNOWDON ON NOVEMBER 7, 2024 AND ORDER OF THE TRIBUNAL
1This Decision arises from a Case Management Conference (“CMC”) relating to an appeal brought pursuant to s. 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended, and s. 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40, as amended, against Director’s Order No. 1-209410483 (“Order”) issued by the Director, Ministry of the Environment, Conservation, and Parks (“Director”) on June 13, 2023. The Appeal has been filed by King & Benton Canal Bank Regeneration Lands Inc. and Steve Charest (together, “Appellants”) regarding the sewage works on the property located at 65 Canal Bank Street in the City of Welland (“Subject Property”).
2The Subject Property has a history of industrial uses, and there is potential environmental harm if the contaminants in the soil are discharged from the property. The extraction of these contaminants increases the risk of discharge from the Subject Property due to exposure to the elements. The Director has submitted that the existing sewage works on site are inadequate to mitigate this risk.
3The Order directs the Appellants to resolve the inadequacy of the existing sewage works on site. The Order consists of 10 items to be complied with:
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 (Cr(Ill));
ii. hexavalent chromium (Cr(VI)); 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.
4On November 9, 2023, a stay was granted for Items No. 8 to Item No. 10. No other items were stayed. With regard to Item No. 7, the Appellants will notify the Director at least 30 days before a third party acquires an interest in the Subject Property.
5A Merit Hearing was scheduled to commence on November 4, 2024, for five days. The Parties requested the dates be vacated and a day be converted to this CMC.
STATUS REQUESTS
6There were no Party or Participant status requests at the CMC.
OPPORTUNITIES FOR SETTLEMENT / MEDIATION
7The Party’s experts have been conducting productive discussions and are working towards a plan to address the Order and long-term issues of the Subject Property. The Parties have agreed that it is reasonable for the experts to continue these discussions and to provide time for the Director to review the plan.
SCHEDULING
8The Parties, on consent, requested a new CMC date to be held following the expert’s discussions.
9A CMC is scheduled for Wednesday, January 29, 2025, at 10 a.m. by Video Hearing.
10Parties are asked to log into the CMC at least 15 minutes before the start of the event to test their video and audio connections:
GoTo Meeting: https://meet.goto.com/677087597
Access Code: 677-087-597
11Parties 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 GoTo Meeting or a web application is available: https://app.gotomeeting.com/home.html.
12Persons who experience technical difficulties accessing the GoTo Meeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: +1 (647) 497-9391 or (Toll-Free) 1-888-455-1389. The Access Code is as indicated above.
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 Video Hearing 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 directives set out above are so ordered.
15No further notice is required.
16The Member is not seized.
“A. Snowdon”
a. snowdOn
member
Ontario Land Tribunal
Website: 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.