HomeMy WebLinkAboutLGL-007-11 •
Leading the Way
REPORT
MUNICIPAL SOLICITOR
Meeting: COUNCIL
Date: June 20, 2011 Resolution#: By-law#: N/A
Report#: LGL-007-11 File#: L2030-05-11
Subject: Update - 4148 Regional Highway 2, Newcastle
MOE Director's Order under the Environmental Protection Act
Appeal to the Environmental Review Tribunal
RECOMMENDATIONS:
It is respectfully recommended:
1. THAT Report LGL-007-11 be received for information;
2. THAT the Municipal Solicitor be directed to attend the Environmental Review Tribunal
preliminary hearing on July 13, 2011 and main hearing of the appeal of MOE Director's
Order#333-8FN29D-1 to observe the proceedings and report back to Council; and
3. THAT a copy of this Report be forwarded to the Ministry of the Environment, John R.
O'Toole MPP, Ganaraska Region Conservation Authority, Ted and Beth Meszaros,
Sherry Ibbotson, Donna Middleton, Carmela Marshall and 1744856 Ontario Inc.
Submitted by: Reviewed by:
fi.
Andrew C. Allison, B. Comm., LL.B. Franklin Wu
Municipal Solicitor Chief Administrative Officer
CORPORATION OF THE MUNICIPALITY OF CLARINGTON
40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L1C 3A6 T(905)623-3379 F (905)623-0720
REPORT NO.: LGL-007-11 PAGE 2
1.0 PURPOSE
1.1 At its meeting on June 13, 2011, the General Purpose and Administration Committee
passed the following resolution (Resolution #GPA-438-11):
"THAT the Solicitor report to Council on June 20, 2011 on the various roles the
Municipality could assume at the Environmental Review Tribunal preliminary
hearing addressing the MOE Director's Order#333-8FN29D-1."
Section 2.0 of this Report responds to this resolution.
1.2 At its meeting on May 30, 2011, the General Purpose and Administration and
Committee passed the following resolution (Resolution #GPA-411-11):
"THAT Staff be directed to consider an interim control by-law for the property
referenced in Report LGL-006-11 and report back to the General Purpose and
Administration Committee."
Section 3.0 of this Report responds to this resolution.
1.3 At the June 13, 2011 General Purpose and Administration Committee meeting, staff
were directed to provide regular updates to residents and Members of Council
regarding any significant developments at the property or commercial fill activities
generally. Section 4.0 of this Report will therefore provide updates on (a) the Scugog
court case; (b) the new GRCA permit application respecting the property; and (c) staff
discussions with representatives of the owner of the property regarding a Morgans
Road Agreement.
2.0 ENVIRONMENTAL REVIEW TRIBUNAL
2.1 A Director's Order under section 157.3(5) of the Environmental Protection Act was
issued April 15, 2011 (the "Order"). A copy of the Order is attached to this Report
(Attachment No. 1).
2.2 As noted in Report LGL-006-11, 1744856 Ontario Inc. and Richard Rondeau filed an
appeal of the Order with the Environmental Review Tribunal. A copy of the appeal
letter dated April 29, 2011 is attached to this Report (Attachment No. 2).
2.3 On June 1, 2011, the Municipality received notice from the Environmental Review
Tribunal ("ERT") that a preliminary hearing for the appeal is scheduled to take place on
July 13, 2011. Amongst other matters, the purpose of the preliminary hearing will be
to determine (a) which individuals or groups wish to participate in the main hearing; (b)
the nature and extent of their participation; and (c) the issues that need to be
addressed at the main hearing. A copy of the Notice dated May 31, 2011 is attached to
this Report (Attachment No. 3).
REPORT NO.: LGL-007-11 PAGE 3
2.4 The Notice describes the four ways in which an interested party can participate in an
Environmental Review Tribunal hearing. They are as follows:
1. Attend and observe the proceedings;
2. Presenter;
3. Participant; and
4. Party.
2.5 A succinct description of what is expected of a presenter, a participant and a party is
set out in the Notice. Essentially, a party is (or can be) represented by legal counsel
and is expected to participate fully'in all aspects of the hearing by calling professional
opinion evidence and making submissions in support of its position on the issues under
appeal. Presenters and participants give evidence and can be cross-examined by
parties (or their counsel).
2.6 At the risk of oversimplifying the issues described in the appeal letter, they all relate to
on-site impacts (e.g. soil testing and groundwater monitoring). The owner has not
raised any issues in the appeal letter respecting the specific items of the Order that
address off-site impacts.
2.7 Municipal staff have not been involved in any discussions with the owner of the
property regarding on-site impacts for two main reasons. First, as stated in Report
LGL-006-11, the Municipality does not have jurisdiction over such matters. The
jurisdiction to regulate on-site activity at the property rests with the Ministry of the
Environment under the Environmental Protection Act and GRCA under the
Conservation Authorities Act and O. Reg. 168/06 (Ganaraska Region Conservation
Authority: Regulation of Development, Interference with Wetlands, Alteration to
Shorelines and Watercourses) passed under that Act. Second, the Municipality does
not have the in-house expertise that is necessary to deal with the on-site issues
addressed in the Order.
2.8 The extent of GRCA's jurisdiction to regulate the fill activity at the property is not a
matter for the ERT to determine. Any issues respecting a GRCA permit must be
determined through an appeal to the Ontario Mining and Lands Commissioner.
2.9 The ERT hearing will not deal with commercial fill operations generally. It will be a
hearing to determine what is necessary or advisable (a) to prevent or reduce the risk of
a discharge of a contaminant into the natural environment from this property; or (b) to
prevent, decrease or eliminate an adverse effect that may result from the presence or
discharge of a contaminant on this property. These are matters that the Municipality
does not have the expertise to address. The Ministry of the Environment has expertise
on staff to deal with these issues.
2.10 It is therefore recommended that the Municipal Solicitor be directed to attend the
preliminary hearing and the main hearing, if there is one, to observe the proceedings
and report back to Council. The Director of Engineering Services, Acting Director of
REPORT NO.: LGL-007-11 PAGE 4
Planning Services, Municipal Clerk, Director of Emergency & Fire Services, and
Director of Operations concur with this recommendation.
3.0 INTERIM CONTROL BY-LAW
3.1 The Planning Act allows municipalities to pass interim control by-laws where the
council has directed that a review or study be undertaken in respect of land use
planning policies in the municipality or in a defined study area. An interim control by-
law may be in effect for up to one year from the date of the passing to prohibit the use
of land, buildings or structures within the municipality or within the defined study area,
except for such uses as are set out in the by-law.
3.2 While an interim control by-law would prohibit a new use not otherwise permitted by the
interim control by-law from commencing, an interim control by-law does not prohibit
uses that are legally in existence prior to the passage of the by-law from continuing
while the interim control by-law is in effect.
3.3 The Planning Act allows a municipality to pass a zoning by-law to prohibit the use of
land. The Morgans Road property is currently zoned "Environmental Protection (EP)"
and "General Agricultural (A)". A commercial fill operation is not identified as a
permitted use, or defined as a use in the Zoning By-law 84-63. However, the
Municipality has never taken the position that commercial fill is not a permitted land
use. Rather the Municipality has historically relied on permits required for areas
regulated by the conservation authorities or permits required under the Municipality's
Site Alteration By-law to regulate such use.
3.4 If an interim control by-law is to be passed, the Municipality would be required to
undertake a study or review in respect of land use planning policies. This study would
likely be a review of where commercial fill operations could be permitted in the
Municipality, and on what basis and conditions. The interim control by-law and study
could prohibit new commercial fill operations. However, such a study would reinforce
the fact that the Municipality does not currently have a policy prohibiting such a use. It
would not preclude the existing fill operation from continuing, from a zoning
perspective, while the interim control by-law is in place.
3.5 It is therefore not recommend that an interim control by-law be used in an effort to
regulate the existing fill operation at the property. The Acting Director of Planning
Services concurs with this recommendation.
REPORT NO.: LGL-007-11 PAGE 5
4.0 UPDATES
Scugog's Court Case
4.1 As reported in Report LGL-006-11, the Divisional Court ruled as follows:
(a) Earthworx Industries "is not engaged in the activity of aeronautics at this time;
rather it is operating a commercial landfill site" and that such landfill activity "is
subject to valid provincial and Township regulation".
(b) Even if conclusion (a) was wrong (i.e. that Earthworx Industries was engaged in
an aeronautical activity),"the doctrine of interjurisdictional immunity does not
prevent the application of the fill by-laws".
(c) Earthworx Industries' judicial review application should not deal with Building
Code orders because there is another statutory appeal mechanism (section 25
of the Building Code Act) for those orders.
4.2 Earthworx Industries has appealed the decision of the Divisional Court.
GRCA Permit
4.3 As reported in Report LGL-006-11, the permit issued by GRCA under Ontario
Regulation 168/06 will expire on June 30, 2011 and as a result the owner has applied
for a new permit.
4.4 GRCA staff have advised the owner that more information is needed to process the
current permit application and accordingly there will not be a staff report dealing with
the application at the June 23, 2011 GRCA Board meeting.
Discussions with the Owner
4.5 As reported in Report LGL-006-11, staff are in discussions with the owner respecting
some of the off-site impacts associated with the operations at the property. The
discussions have been constructive; but there is not yet an agreement on all issues.
Attached to this Report is a copy of a letter from the owner's solicitor commenting on
some of the things that have been discussed. At my request, the letter also provides a
summary of the documentation filed by the owner's consultant (Decommissioning
Services Limited) with the Ministry of the Environment in response to the Director's
Order.
Attachment 1: Director's Order dated April 15, 2011
Attachment 2: Appeal letter dated April 29, 2011
Attachment 3: Notice from the Environmental Review Tribunal dated May 31, 2011
Attachment 4: Letter from Aird & Berlis dated June 15, 2011
ATTACHMENT NO. 1 TO
REPORT LGL-007-11
Ministry of the Environment
Ontario Minist6re de I'Environnement
Director's Order
Section 157.3 Environmental Protection Act,R.S.O.1990 Order Number
Section 16.4 Ontario Water Resources Act,R.S.O.1990 3333-8FN29D-1
Section 26.3 Pesticides Act,R.S.O.9990
Sate Drinking Water Act,8.0.2002,c.32(SDWA) Incident Report No.
Section 32 Nutrient Management Act,2002,S.0.2002 5573-8FMH37
To: 1744856 Ontario Inc.
96 Cawker's Cove Rd Port Perry
Scugog,Ontario,L9L IR6
Canada
Richard Rondeau
96 Cawker's Cove Rd Port Perry
Scugog,Ontario, L9L IR6
Canada
Site: 4148 Regional Highway#2 RR#8, Newcastle
Clarington,Regional Municipality of Durham
Pursuant to my authority under EPA Section 157.3(5),I order you to do the following:
Response to Request
I have reviewed the request for review and stay dated April 13,2011 and clarified on April 14,
2011 from legal counsel for the parties ordered,namely 1744856 Ontario Inc. and to Richard
Rondeau (the"Review Request"). The Review Request related to the Provincial Officer's Order
Number 3333-8FN29D ("Order")issued by Provincial Officer Steve Elford on April 6,2011.
The Order is a preventative measures order issued pursuant to subsection 157.1 (1)of the
Environmental Protection Act ,R.S.O. 1990,c. E. 19 (EPA).
The Review Request asks that the Director,review all of the Items of the Order, and revoke the
Order, or alternatively amend it in accordance with some proposed modifications. I am issuing
this Director's order as the acting District Manager in the absence of Dave Fumerton,to whom
the Review Request was originally addressed. In addition to reviewing the Review Request,I
have reviewed the Order including the reasons for the Order. I have also discussed the Order
with the issuing officer, Dave Fumerton and legal counsel for the Ministry.
I shall respond to each of the key points raised in the Review Request below in the"Reasons for
Response"portion of this Director's Order.
Page 1 -NUMBER 3333-BFN29D
Clause(b)of subsection 157.3(5) of the EPA provides that the Director may,by order,revoke,
confirm or alter an order of a provincial officer. Subsection 157.3(6)provides that for the
purposes of subsection 157.3(5) the Director may substitute his or her own opinion far that of
the provincial officer.
I have decided that the Order should not be revoked. I have agreed with a number of the
wording amendments and a date change suggested need Review
consderta Because
stay. I m also of the
Director's order is being issued today,
opinion that a communication plan would be a beneficial addition to the Order.
For convenience and ease of reference,I hereby set out my Director's Order,in its entirety, and
use,by means of capitalization,the defined terms set out in the Provincial Officer's Report or in
This order
Pork Ordered compliance Date 2011/04/15
item No. 1 1 YYY1;h, MiDD1
After April 15,2011 at 07:00 hours,cease accepting any material at the Site that originates
from any source,other than Pier 27 or the soil reconditioning facility located at Toy Avenue,
Pickering,until:
a)One or more Qualified Person(s)hasthave been retained to carry out the work described in
conditions 1,5 and 6 of the GRCA Permit No. 1089 and this Director's order e name,contact re s been
submitted to the undersigned Director written documentation confirming
information and qualifications of the retained Qualified Person(s).
b)There is put in place a procedure whereby the Qualified Person(s)has/have reviewed
available written documentation for each source dtth�there is dou in
mentadon supporting that
being zeceived,is acceptable for use at the Site a delivery
of material
there are appropriate soil management activities
t source
e meets Table 2 rit ria. The written
to the Site to ensure the material being deliv ered to the S
documentation and written confirmation shall be available at the Site,for review by a Provincial
Officer.
c)There is an on-site,independent Qualified Person(s),or an independent inspector instructed by
the Qualified Person(s) and reporting thereto, to confirm in writing that the material being
received is acceptable for use at the Site. The written documentation and written confirmation
shall be available at the Site for review by a Provincial Officer.r. The
vehicle e at the (s) or the
independent inspector shall be responsible form g
including documenting the vehicle identity for all vehicles depositing material at the Site,details
of the approved source of the material,and the date,time and location where, material was
deposited and/or managed.
d)There is put in place,a procedure that is acceptable to the undersigned Director whereby each
source site material can be segregated and deposited into separate areas and managed at the Site
Page 2-NUMBER 3333-6FN29D
in conjunction with the confirmatory audit sampling procedures set out below.
e)There is put in place, a procedure whereby the Qualified Person(s), or an independent
inspector reporting thereto, shall collect weekly audit soil samples from trucks that represent each
source site that has been accepted to ship soil to the Site.These soil samples shall be analysed for
metals, soluble chlorides;volatile organic compounds,petroleum hydrocarbons,and benzene,
toluene, ethylbenzene,xylenes and semi-volatile organic compounds. Copies of these analysis
results shall be maintained on the Site and be made available to Ministry staff upon request. If
any audit sample results indicate levels above Table 2 criteria,the undersigned Director shall be
notified within 24 hours and advised of the action(s)being taken and by when the soils above
Table 2 will be removed from the Site.
The provisions of subparagraphs (d) and(e) shall apply,after April 15,2011, to all materials
received at the Site including the Pier 27 and Toy Avenue materials.
The foregoing provisions have no expiration time periods indicated, and shall continue in full
force and effect,until such time as a Director revokes or alters the requirements. The Site owner
and the Permit holder may, at any time, submit to the Director, an application,based on a
recommendation from the Qualified Person,for a revocation or alteration of the provisions. The
Director shall alter this order following receipt of such an application,even where the Director
may not approve or accept the submission made in order to provide for a right of appeal of such a
decision.
Item No. 2 Compliance Date 2011/05/09
(YYYY/IAMIDD)
By 16:00 hours on May 9,2011, submit to the undersigned Director,a copy of a report from the
Qualified Person(s)regarding the nature and sources of the material that has already been
deposited at the Site prior to the date of the report. This report shall also include a description of
any business relationships between the parties involved at the source sites, the excavation and
trucking activities, and all the parties involved at the Site including, Where corporations are
involved,any business relationships with their officers,directors,and shareholders.
Item No. 3 Compliance Date 2011/05/09
(YYYY!mMlDD)
By 16:00 hours on May 9,2011,submit to the undersigned Director one or more reports on any
environmental site assessment and soil work done at the Site, and,a plan prepared by the
Qualified Person(s),for additional environmental site assessments) and the date for completion
of those assessment(s). The additional environmental site assessment(s)will include, at a
minimum;
(a) a site soil and fill characterization program including test pitting and boreholes as appropriate
to determine the concentration and vertical and horizontal extent of any contaminant in the fill
received at the Site and,if determined by the Qualified Person to be necessary,a program to
assess underlying native soils, and
Page 3-NUMBED 3333-8FN29D
(b) a groundwater monitoring program including intrusive investigations to characterize the
depth to groundwater, groundwater flow direction,a groundwater sampling program and a survey
of on-Site and off-Site groundwater uses and/or the relation to surface water features for all
groundwater aquifers at the Site that may be impacted by activities at the Site.
Item No. 4 Compliance Date 2011/04/15
(YYYY!fA01DD)
By 16:00 hours on April 15,2011, submit to the undersigned Director, the following:
(a) a report confirming appropriate security measures at the Site and ensure the measures
continue to be implemented, and
(b) written confirmation of procedures and legal requirements in place relating to managing any
noise and dust from activities at the Site and truck traffic to and from the Site and ensure these
procedures continue to be implemented and legal requirements followed.
Item No. a Compliance Date 2011/04/29
iYYYY17v1N1 DDl
By 16:00 hours on April 29,2011, submit to the undersigned Director a communications plan
with timelines for implementation,in order to advise all interested parties,concerning the
activities being undertaken at the Site in relation to this order.
REQUEST FOR DARING
You may require a hearing before the Environmental Review Tribunal if,within 15 days of service of this order,you
serve written notice of your appeal on the Environmental Review Tribunal and the Director.Your notice must state
the portions of the order for which a hearing is required and the grounds on which you intend to rely at the hearing.
Except by leave of the Environmental Review Tribunal,you are not entitled to appeal a portion of the order or to
rely on grounds of appeal that are not stated in the notice requiring the hearing.Unless stayed by the Environmental
Review Tribunal,the order is effective from the date of service.
Written notice requiring a hearing must be served personally or by mail upon:
The Secretary and Director
Environmental Review Tribunal Ministry of the Environment
655 Bay Street,15th Floor 5th Floor
Toronto ON 230 Westney Rd 5
MSG IE5 Ajax ON LlS V5
Fax:(905)427-5602
Where service is made by mail,the service shall be deemed to be made on the fifth day after the date of mailing and
the time for requiring a hearing is not extended by choosing service by mail.
FOR YOUR INFORMATION
The procedures to request a hearing and other information provided above are intended as a guide.The legislation
should be consulted for additional details and accurate reference.
Reasons for Response
Richard Rondeau:
Page 4-NUMSER 3333-8FN29D
I disagree that there is "no basis for inclusion of Richard Rondeau in the Order". As indicated in
the Provincial Officer's Report, Mr. Rondeau personally applied for, and was issued, the GRCA
permit No. 1089. Consequently,I am of the opinion that Mr. Rondeau is a person responsible
for managing or controlling the Site,and is therefore an appropriate person against whom a
preventative measures order should be issued.
Site Ownership and Description:
As noted in the April 14,2011 clarification letter, 1744856 Ontario Inc.is the owner of the Site.
It should be noted that the municipal address for the Site was incorrectly stated in the Order as
"2513 Morgans Road,Newcastle, Clarington,Regional Municipality of Durham". Clarington
has advised that there is no Morgans Road address for the Site,but that the municipal assessment
records describe the Site's address as 4148 Regional Highway 2,R.R.#8,Newcastle. The legal
description of the Site is "PT L T 16 CON 2 CLARKE AS IN D463967 EXCEPT PT 1 1OR2193;
S/T N9921; CLARINGTON (PIN 26668-0065 (LT)). I have amended the Site address above
accordingly.
I have also noted that the"property plan" and the"final grading plan" that were attached to the
Order as part of the GRCA permit material indicate that the Site is generally in the shape of a
rectangle. The land registry office records indicate that,in fact, a portion of the rectangle
adjacent to Morgans Road,beginning just to the north of the vehicle roadway onto Morgans
Road,to just below the "proposed fill area",is owned by the Crown(Ontario Ministry of
Transportation). The owner of the Site is claiming rights over this property(including,in
particular, the right to access and use the roadway) and has been in discussion with Crown legal
counsel concerning this property. I understand that there has been, and will be,no deposit or
stockpiling of fill on this parcel of land.
Basis for the Order:
I am of the opinion that the Order and this Director's order are necessary and appropriate in these
circumstances.'I agree that 1744856 Ontario Inc.has indicated a level of cooperation in dealing
with this matter. However,given the broad public interest in this Site and in filling operations,
generally,I believe it is important to have the Ministry issue a control document which outlines,
formally,its expectations and requirements. The Order is the appropriate document to do so and
also provides appeal procedures,if necessary. It is important to recognize that the Order is not a
contravention order; but rather a preventative measures order. The Ministry has not been
provided with sufficient information required at this time to properly assess the environmental
status of the Site. Furthermore, although GRCA and Clarington are involved,as indicated in the
Order,there are jurisdictional limitations. The involvement of the Ministry and the issuance of
the Order and this Director's order supplement their requirements and provide for an
improvement in the understanding of the Site and its operations.
I do not agree with all of the Review Request background and factual information.
Although the meeting on Monday, April 11,2011 was the first opportunity for Mr.Shawn
Page 5-NUMBER 3333-SFN29D
Rondeau,the son of Richard Rondeau,to discuss the matter with Ministry staff,Provincial
Officer Steve Elford did attend at the Site on Monday,March 2, 2011 and spoke with Mr.Jody
Churchill who was managing the Site operations and was well aware of the Ministry's concerns.
Previous to that,the Ministry's concerns are reflected,in a general way,in the GRCA Permit No.
1089.
Clarington counsel has advised me that the statement made on Page 3 of the Review Request,
"Prior to accepting any fill at the site,our client was advised by Clarington that a permit was not
required to accept fill."is not completely correct. The advice provided by the Clarington official
was that no permit was required from Clarington because the Site was being regulated by the
GRCA 4nd a permit would be required from them.
I do not agree"there is no evidence of an adverse effect or the potential for an adverse effect
from fill deposited on-site under the terms of the Permit—there is no basis for an Order".
The sample taken by the Ministry in April 2010,which showed a minor exceedance of Table 2,
was taken to assist the GRCA. GRCA did issue their control document,Permit No. 1089,which
did deal specifically with requirements regarding the area of the Site which was sampled(see
Condition 5 on the Permit). No fiu-ther sampling, however,was conducted by either the Permit
holder or the Site owner, to confirm that the balance of the material,which had been deposited at
the Site, and has since been relocated,did, in fact,meet the requirements of Permit Condition 5.
Although the Site owner did receive some sample results from its engineering consultant,who in
turn was relying on information received from the Pier 27 consultant,I have concerns regarding
this information. The amount of the sampling was not sufficient and how the sample
information relates to the material that was, in fact, deposited at the Site is not clear. As
indicated in the Review Request,the report being submitted to satisfy Work Ordered Item No.2
regarding the nature and sources of the material deposited at the Site will provide further
information in this regard. It is important to note that I now understand filling occurred at the
Site in March 2010(from Toy Avenue,before the Permit),in September 2010 (from
Bowmanville) and then in March 2011 (from Pier 27 and Toy Avenue), and that,in all cases, the
GRCA was not provided with the sample results from these source sites prior to the filling
activities taking place. If the new soil analysis reports being submitted by the Qualified Person
indicate specific exceedances of Table 2 criteria, appropriate actions will be required to be taken.
In summary, a basis for the Ministry's concern is a lack of appropriate information regarding the
source sites'material and the public concern regarding potential impact to private drinking water
wells.
I believe the requirements of this Director's order are necessary or advisable so as, as stated in
Section 157.1 of the EPA:
" (a) to prevent or reduce the risk of a discharge of a contaminant into the natural environment
from the undertaking or project; or
(b)to prevent,decrease or eliminate an adverse effect that may result from
Page 6-DUMBER 3333-BFN29D
(1)the discharge of a contaminant from the undertaking, or
(ii)the property.presence or discharge of a contaminant in,on or under the
Work Ordered Items:
The following specifically comments on the Work Ordered Items:
I have required the submission of materials to myself,instead of"the undersigned Provincial
Officer"in the various sections where this was noted in the Order and the Review Request
proposed amendments. Since I am issuing this Director's Order, it is appropriate to have the
submissions sent directly to me.
Item No. 1:
I have agreed with a number of the proposed amendments in Item No. 1. The following sets out
the reasons for the key areas involved:
I have received on April 14,2011,information required by Item No. I (a) of the Order,
confirming that Decomissioning Consulting Services Limited has been retained as the Qualified
Person for the purposes of the Order.
The Ministry does not require the Site to cease accepting material from Pier 27 and/or the soil
reconditioning facility at Toy Avenue,Pickering, as the Qualified Person will be,as of April 15,
2011,supervising the on-site soil management activities and providing a report by May 9,2011
to me regarding these source sites.
Although 1 have agreed to the wording changes in sub-paragraphs (a)and(b)of Item No. 1,1 see
the role of the Qualified Person as being critical"to ensure the material being delivered to the
Site meets Table 2 criteria." by
I have agreed in sub-paragraph(c)of Item No. 1 to add "an independent inspector n kme
the Qualified Person and reporting thereto". I have not,however, agreed Y
period limitation for this requirement, as requested. Until the May 9,2011 report is submitted
by the Qualified Person, such a decision cannot be made. This independent audit requirement is
a requirement at other fill site operations where the Ministry is involved in York Durham
District.
I have,however,provided provisions that address a possible revocation or alteration of the Item
No. 1 requirements. This addition will also provide appeal rig decision by the Director made in the
Permit holder and the Qualified Person do not agree with use c address these
future. This provision is often inserted in orders or certificates of property
time limitation concerns.
Item No.2:
Page 7-NUMBED 3333-8FN29D
I have agreed to change the compliance date for the submission of the nature and sources of fill
report from April 29,2011 to May 9,2011 to allow the Qualified Person time to complete an
appropriate detailed report for our review.
Item No. 3:
I have also agreed to change the compliance date for the submission of any environmental site
assessment reviews. It is my view that a groundwater monitoring program is particularly
important at this Site to understand the groundwater flow regime in the area wherein the
community relies on groundwater as the source of drinking water, and any possible adverse
impacts,either off-site or moving within the Site,or as has been suggested,possibly moving
onto the Site from a nearby former landfilling operation,
Items No.4 and No. 5:
Items No.4 and No. 5 of the Order have been merged into my Director's Order Item No.4,as
they both have the same compliance date.
I understand that there are security measures currently in place for the Site, and therefore have
amended the requirement to submit a report,rather than a plan.
I have added"legal requirements" to the procedures in place with respect to the report on the
management of noise and dust from activities at the Site and truck traffic to and from the Site. I
understand that Clarington will be dealing with these matters in further detail at a later date.
New Item No.5
I have added a new provision requiring a the submission of a proposed communication plan in
order that the activities being undertaken at the Site can be properly conveyed by the Site owner
and Permit holder to all interested parties. Measures that I have seen being used effectively
elsewhere to provide proactive and open information include newsletters, websites, open houses
and meetings and presentations. I will review the submitted plan and provide comments thereon
and the next steps.
Attachments
This Notice constitutes part of Order Number 3333-8NN29D,issued on 06/04/2011.
Issued at Ajax this 15th day of April, 2011.
Page 8-NUMBER 3333-BFN29D
Sandra Thomas
York Durham District Office
Page 9-NUMBER 3333-8FN29D
ATTACHMENT NO. 2 TO
REPORT LGL-007-11
y AIRD & BERM
Barristers and Solicitors REV 1 E V.1`1`R r B U N Ai--
` APR 2 9 2011
Patricia A.Foran
E-mailil:pforan @allydberlis.com TRIBUNAL SECRETARY'S
OFFICE
April 29, 2011
Our File No. 108778
DELIVERED
Environmental Review Tribunal
655 Bay Street, 15th Floor
Toronto, ON M5G 1 E5
Attention: The Secretary
Dear Secretary:
Re: Notice of Appeal under the Environmental Protection Act, section 140
1744856 Ontario Inc. and Richard Rondeau
Director's Order Number 3333-8FN29D-1 dated April 15, 2011
We are counsel to 1744856 Ontario Inc. (the "Company") and Richard Rondeau (together,
the "Appellants"). Our clients are appealing the Director's Order dated April 15, 2011
issued by Sandra Thomas, Acting Director("Director") made under Section 157.3(5) of the
Environmental Protection Act (hereinafter referred to as the "Director's Order"). A copy of
the Director's Order is included at Tab 1. The Director's Order responds to a request by
the Appellants for a revocation and review of the Provincial Officer's Order#3333-8FN29D
dated April 6, 2011 (the "Original Order") (included at Tab 2) in relation to property owned
by the Company at 4148 Regional Highway #2 RR #8, Newcastle, Clarington, Regional
Municipality of Durham.
The Company operates.a legal fill operation at the subject lands, in accordance with
Permit #1089 obtained from the Ganaraska Region Conservation Authority ("GRCA")
dated June 30, 2010. The GRCA has jurisdiction to issue permits to accept fill and alter
grades in relation to the subject land. Neither the Original Order of April 6, 2011 nor the
Director's Order of April 15, 2011 suggest that MOE disputes the GRCA's jurisdiction to
have issued Permit#1089 or to oversee the operation of a fill operation at the subject site.
The background to this appeal is set out in the request for revocation and review (the
"Review Request") dated April 13, 2011 made to the Director..and found at Tab 3. It is the
Appellants' submission that there are factual errors in both the Original Order and the
Director's Order, which are enumerated in the Review Request, and further outlined
below.
Relief Requested
Our clients specifically request this Tribunal to conduct a hearing into this matter and
make an Order to:
Brookfield Place, 181 Bay Street,Suite 1800, Box 754•Toronto,ON-M5J 2T9. Canada
T 416.863.1500 F 416.863.1515
www.airdbertis.com
" April 29, 2011
Page 2
a) revoke or amend as requested the Director's Order dated April 15, 2011 refusing
to revoke or amend the Provincial Officer's Order dated April 6, 2011, as
requested by our clients; and,
b) permit the Company to provide additional information, as necessary, in support of
this appeal.
Contact Information
The contact information of Richard Rondeau and the Company and Aird & Berlis LLP (the
"Appellants' Representative") is provided below. All correspondence in this matter should
be directed to the Appellants' Representative and should be in English.
The Appellants at:
1744856 Ontario Inc.
96 Cawker's Cove Rd
Port Perry, ON 1-91- 1 R6
Attention: Shawn Rondeau
Richard Rondeau
96 Cawker's Cove Rd
Port Perry, ON 1-91- 1 R6
and the Appellants' Representative at:
Aird & Berlis LLP
Barristers and Solicitors
Brookfield Place, 181 Bay Street
Suite 1800, Box 754
Toronto, ON M5J 2T9
Tel: (416) 863-1500
Fax: (416) 863-1515
Email: pforanaairdberlis.com; sstoll(aairdberlis.com
Attention: Patricia l=oran and Scott-Stoll
We note that despite our previous request to the Director that all correspondence be
served on both Mr. Stoll and myself, the Director's Order was served only on Mr. Stoll.
We would appreciate it if the Tribunal would ensure that all documents and
correspondence are addressed to both Mr. Stoll and myself.
AIRD & BERLIS mp
Banisters and Solicitors
April 29, 2011
Page 3
Backaround
The Appellants continue to rely on the background facts set out in their Review Request
dated April 13, 2011 (Tab 3). In addition, the following additional facts are noted:
1. The MOE fill samples referenced in the Original Order were obtained by MOE in
April 2010 and were disclosed to the Appellants a year later at our request. Our
clients' consultants, DCS, have reviewed the analysis respecting these samples
and have concluded that the,samples taken by MOE a year ago meet Table 2.
Accordingly, there was and continues to be no scientific basis for the Order on the
basis of materials sampled by MOE last year.
2. The second basis for the Order—an apprehension of a concern about two source
sites — is also not supported by any analytical results or scientific data. It is also
acknowledged by the Ministry that the two sources of fill — the Toy Avenue
reconditioning facility and Pier 27 —are unlikely to have exceedences of the Table
2 requirements.
3. The Director's Order suggests that the GRCA permit and jurisdiction is insufficient
to govern the fill operation on the subject lands. There is no evidence that the
exercise of any jurisdiction by GRCA has failed or has any shortcomings. Indeed,
there has been no attempt to revoke or amend the permit by GRCA and at all
times, the Appellants have complied with the GRCA permit conditions.
4. Prior to the Original Order, the Company voluntarily met with Clarington and has
responded to information requests from the municipality and from GRCA. Any
operational concerns that have been brought to the Company's attention have
been responded to by the Company. At all times the Company has demonstrated
cooperation and a willingness to work both with the GRCA and the municipality.
5. Prior to-the Original Order, there was no contact by MOE with any representative
of the Company or Richard Rondeau.
Appeal
1. Order Against Richard Rondeau
The only apparent basis for maintaining Mr. Rondeau named in the Order is that he was
named in the GRCA permit. In addition to the submissions made in the Review Request,
Mr. Rondeau obtained GRCA Permit #1089 as a representative of 1744856 Ontario Inc.
There is simply no basis for the continuation of the subject Order against him.
2. Director's Order Items 1 —3 (a); 4.5
In respect of the Director's Order, and without prejudice to this appeal, the following
matters have been addressed in accordance with the Order:
Item 1 (a)—(e): either not applicable or complied with;
Item 2: completed;
Item 3 (a): to be submitted;
AIRD & BERLIS up
Barristers and Solicitors
April 29,2011
Page 4
Item 4: completed;
Item 5:to be submitted.
With respect to Item 1, our clients had requested, in the Review Request, that a time limit
be inserted into the Order. We note that the Director's Order of April 15, 2011 does not do
this but instead amends the Original.Order to permit the Appellants to make application to
change this part of the Order and, if necessary, appeal the further Decision or Order. Our
clients continue to be of the view that there is no basis for this part of the Order; however,
application will be made and should the request not be granted, our clients will consider
an appeal at that time. Accordingly, this appeal is without prejudice to our clients' rights
respecting the failure of the Director's Order to include a time limit for Item 1.
3. Requirement 3(b)
Item 3 (b) contained in the Director's Order is of significant concern to our clients. The
requirement for groundwater monitoring was acknowledged by MOE Staff in meetings as
unnecessary. There is no evidence that any material accepted at the site represents a
potential risk to groundwater in the area. Based on the results of samples obtained to
date, including pre-permit material sampled by the Appellants' consultants since the time
of the Original Order, there is no basis for an Order requiring groundwater monitoring.
We reserve the right to augment the reasons set out in this appeal. A stay of this Order
may be sought.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
1744856 Ontario Inc. and Richard Rondeau
By their Counsel
AIRD &BERLIS LAP
t icia A. Foran
P jag
En
This document is also served upon:
The Director
Ministry of the Environment
5th Floor
230 Westney Road South
Ajax, ON L1 S 7J5
8052677.2
/BIRD & BERLIS up
Barrlsters and Solkitars
ATTACHMENT NO. 3 TO
REPORT LGL-007-11
Environment and Land Tribunals Tribunaux de I'envIroi,,,vrnuni et ae w +�
Ontario I'am®nagement du territoire Ontario
Environmental Review Tribunal Tribunal de 1'environnement
_1C 656 Bay Street,Sulte 1500 655 rue Bay,suite 1500at dI
Toronto ON M5G 1 E5 Toronto ON M5G 1 E5
Telephone: (416)212-6349 T616phone: (416)212-6349
Toll Free: 1-866-448-2248 Sans Frals: 1-866.448-2248 JUN 0 12011
Fax: (416)314-4506 Wkopieur: (416)$14-4506
Website: www.elto,gov.on.ca Slteweb: www.elto.gov.on. �r1UNICIPALI CY OF CL, ni{VGTON
May 31, 2011 COUNCILLOA'S OF)=10ES
NOTICE TO ALL OWNERS OF NEARBY LANDS AND INTERESTED PARTIES
Enclosed is a Notice of Hearing for an appeal before the Environmental Review Tribunal. You
are being notified of this hearing because you are an owner of land near the facility or property
in question or a person who may have an interest in this hearing.
Owners of nearby lands and interested parties may seek the opportunity to participate at the
Hearing. You are not required to attend the hearing, but if you do wish to participate, there
are four ways in which you may do so. They are as follows:
1. You may attend the hearing and observe the proceedings, but not actively participate.
2. You may request the hearing panel to grant you presenter status at the hearing. As a
presenter, you will be able to provide your testimony under oath or solemn affirmation at
the hearing, and be cross-examined by all parties. You may also file written material in
addition to your oral presentation.
3. You may request that the.Tribunal grant you participant status at the hearing. As a
participant, you will be able to provide your testimony under oath or solemn affirmation at
the hearing, and be cross-examined by all parties. You may also file written material in
addition to your oral presentation. Participants, however, are expected to attend each
day of the hearing so that any submissions made to the Tribunal will reflect the evidence
given by all the parties, and others, during the course of the entire hearing.
4. You may request that the Tribunal grant you party status. This means that you have the
right to present evidence through witnesses, cross-examine witnesses and make
submissions. Partles are often represented by legal counsel. Parties are expected to
attend all hearing days, including days allocated to final argument.
Should you wish to participate in these proceedings, you should immediately write, fax or email
the Case Manager to indicate your intention. You should visit the Tribunal's website to obtain a
copy of the Rules of Practice and Practice Directions of the Environmental Review Tribunal.
The Tribunal's website is located at www.ert.ctov.on.ca. If you do not have Internet access, a
copy of the Rules of Practice and Practice Directions will be mailed upon request.
Yours truly,
04b)
For: Donna Symonds
(Acting)Tribunal Secretary
Assessment Review Board-Board of Negotiation-Conservation Review Board-Environmental Review Tribunal-Ontario Municipal Board
Niagara Escarpment Hearing Office-Office of Consolidated Hearings
Environment and Land Tribunals Tribunaux de t'environnement et de
Ontario I'am6nagement du territolre Ontario
Environmental Review Tribunal Tribunal de 1'environnement
655 Bay Street,Suite 1500 655 rue Bay,suite 1500
Toronto ON M5G 185 Toronto ON M5G 1 E5 (�l1t81'I�
Telephone: (416)212-6349 T616phone: (416)212-6349
Toll Free: 1-866.448.2248 Sans Frals: 1-866-448-2248
Fax:. (416)314-4506 T616copieur: (416)314-4506
website: vrww.elto.gov.on.oa . Site Web: www.elt0,gov.on.0a
Case Nos.: '11-014111-015
NOTICE OF PRELIMINARY HEARING
In the matter of appeals by Richard Rondeau and 1744856 Ontario Inc. filed
April 29, 2011 for a Hearing before the Environmental Review Tribunal
pursuant to section 140 of the Environmental Protection Act, R.S.O. 1990, c.
E.19, as amended; with respect to an Order issued by the Director, Ministry
of.the Environment, on April 15, 2011 under section 157.3(5) of the
Environmental Protection Act, requiring that: certain material not be accepted
until qualified persons carry out work, confirm that material being received is
acceptable and soil management activities are in place; a procedure for
segregation and management of source site material and weekly soil sample
auditing be put In place; reports and plans for environmental site assessment
and soil-work be submitted; security measures and procedures to manage
noise and dust from site activities be confirmed; and a communications plan
and times for implementation of site activities relating to the Director's Order
be submitted in relation to a site located at 4148 Regional Highway#2, RR48,
Newcastle, Clarington, Regional Municipality of Durham, Ontario.
The purpose of the Hearing is to enable the Tribunal to determine whether it shall confirm, alter
or revoke the Director's Order that is the subject matter of the Hearing, and direct the Director to
take such action as the Tribunal considers appropriate. The Tribunal may substitute its opinion
for that of the Director.
Preliminary Hearing:
A Preliminary Hearing will be conducted by the Hearing Panel on Wednesday, July 13, 2011 at
90:00 a.m, in the Council Chambers, in the Municipality of Clarington, 40 Temperance
Street, Bowmanville, Ontario. The purpose of the Preliminary Hearing will be: to receive
submissions from groups and individuals who are seeking Party, Participant or Presenter status
and to rule on them; to identify the preliminary issues to be considered at the main Hearing; to
establish the pre-Hearing process (information and document exchange, meetings of Parties
and their legal and technical representatives, scoping of issues, and planning of the main
Hearing); to deal with any other preliminary matters that may be raised by Parties, Participants
or Presenters, to establish dates for the main Hearing; and to finalize and issue procedural
orders,
Assessment Review Board-Board of Negotiation-Conservation Review Board•Environmental RevlowTribunal-Ontario Municipal Board
Niagara Escarpment hearing Office-Office of Consolidated Hearings
3
For more information, please review the appropriate legislation, the Rules of Practice and
Practice Directions of the Environmental Review Tribunal, and"A Guide to Appeals under the
Clean Water Act, 2006, the Environmental Protection Act, the Nutrient Management Act, 2002,
the Ontario Water Resources Act, the Pesticides Act, and the Safe Drinking Water Act, 2002",
all of which are available on the Tribunal's website at www.ert.gov.on.ca.
DATED at TORONTO, this 31st day of May, 2011,
OW&-�
For: Donna Symonds
(Acting)Tribunal Secretary
Information Contact:
Dina Ostella, Case Manager
Environmental Review Tribunal
655 Bay Street, Suite 1500
Toronto, Ontario M5G 1E5
Case Manager's Email: dina.ostolla(a),ontarioca
Tel: (416) 314-4712
Fax: (416) 3144506
Tribunal website: www.ert.gov.on.ca
Assessment Review Board-Board of Negotiation-Conservation Review Board-Environmental Review Tribunal•Ontario Municipal Board
Niagara Escarpment Hearing Office-Office of Consolldated Hearings
ATTACHMENT NO.4 TO
REPORT LGL-007-11
AIRD & BERLIS LLP
Barristers and Solicitors
Patricia A.Foran
Direct:416.865.3425
E-mail:pforan @airdberlis.com
June 15, 2011
Our File No. 108778
BY EMAIL
Andrew Allison
Municipal Solicitor
Municipality of Clarington
40 Temperance Street
Bowmanville, ON L1C 3A6
Dear Mr. Allison:
Re: 1744856 Ontario Inc.
r Part Lot 16, Concession 2 (Clarke Twp.), Clarington, Regional Municipality
of Durham
I write further to our meeting with Town Staff on Wednesday, June 1, 2011, and in
particular, with yourself, Mr. Horvath, Ms. Barrie and Ms. Benson to discuss the draft
Morgans Road Road Agreement. We continue to await a revised draft agreement from
you, resulting from our discussions. I am not aware of any additional information required
from our client to complete a revised draft agreement; if I am incorrect in this assumption,
kindly advise.
As requested by you, I wish to summarize the advice provided to you at our meeting
respecting documentation filed with MOE by Decommissioning Services Limited ("DCS")
and/or my firm, on behalf of our client:
As you may be aware, the original MOE Order dated April 6, 2011 (subsequently revised
through Director's Order dated April 15, 2011) referenced samples taken by MOE from
our client's site last April, 2010, Upon learning of these samples in April of this year, our
client requested copies of the analysis respecting these samples and provided the
analysis to DOS. DOS have confirmed in a subsequent report dated May 9, 2011 that the
samples taken by MOE over a year ago meet the applicable generic Table 2 standards for
industrial/commercial/community land use in a potable groundwater situation.
I also indicated that as part of our client's cooperation in responding to the Director's
Order, our client has provided to MOE a satisfactory soil sampling protocol which has
been in place on site since April 15, 2011. As you may be aware, the Director's Order
distinguishes between fill from Pier 27 and Toy Avenue,.on the one hand, and fill from
other sites. We understand that the soil management and excavation procedures at Pier
27 and Toy Avenue were established in consultation with MOE and fill originating at those
two sources is considered suitable by the Ministry. As of this date,, no fill from a source
other than Pier 27 or Toy Avenue is being directed to the site. Should this change, the
Brookfield Place, 181 Bay Street,Suite 1800, Box 754,Toronto,ON M5J 2T9• Canada
T 416.863.1500 F 416.863.1515
WINIFV,airdber115,COIII
June 15, 2011
Page 2
requirements of the Director's Order and the fill management protocol are clear as to
DCS' role as a QP in overseeing any new fill sources.
DCS has also conducted weekly audit samples of soils from Pier 27 and Toy Avenue
since April 15, 2011. The first four weeks of sample results meet the aforementioned
Table 2 standards.
In addition to the foregoing, DCS established a Dust, Soil Tracking and Noise
Management Plan which was filed with MOE, DCS assisted with the on-site
implementation of that Plan. Our client's on-site personnel follow the Plan which is kept
on site. Of relevance to our conversation two weeks ago is the fact that on-site personnel
visually inspect trucks (incoming and outgoing) and on-site roads and off-site routes
adjacent to the site through application of soil tracking and dust mitigation measures. An
on-site log of observations and measures taken is maintained. As Clarington Staff are
aware, our client is also responding to any complaints made respecting the matter.
When we met, our client indicated its willingness to clarify aspects of the Plan. They were
also asked to voluntarily limit their hours of operation on Saturdays, and I responded to
you on that point some time ago, As noted at the outset of this letter, I am not aware of
any further information that Clarington requires from our client to complete a further draft
agreement. We would appreciate your advice as to timing as we had understood that the
revised agreement would be forwarded as soon as possible following our meeting.
Yours truly,
AIRD & BERLIS LLP
Patri A. Foran
PAF/fag
cc: client
R. German, DCS
9508586.1
4
O
AIRD & BERLIS LLP
Batrfsters and Solicitors