Hamilton order

8/20/2019 Hamilton order

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Ministry of the Environmentand Climate Change

Ministère de l’Environnement et de l’Actionen matière de changement climatique

Order Number:

Incident Report No:

Director's OrderEnvironmental Protection Act, R.S.O. 1990, c.E 19 (EPA)

Ontario Water Resources Act, R.S.O. 1990, c. O. 40 (OWRA)

Pesticides Act, R.S.O. 1990, c. P11 (PA)

Safe Drinking Water Act, S.O. 2002, c.32 (SDWA)Nutrient Management Act, 2002, S.O. 2002, c.4 (NMA)

To:

1. AVX Corporation, 1 AVX Boulevard, Fountain Inn, South Carolina, 29644-9039,United States of America

2. Coca-Cola Refreshments Canada, 335 King Street East, Toronto, Ontario M5A 1L1

3. Rosart Properties Inc., 226 South Service Rd E, Oakville, Ontario, Canada L6J 2X5

4.

Union Gas Limited, Post Office Box 2001, Chatham, Ontario, Canada N7M 5M1

Sites:

1565 Barton Street East in Hamilton, Ontario,

1575 Barton Street East in Hamilton, Ontario, and

360 Strathearne Avenue North in Hamilton, Ontario

Part 1: Definitions

For the purposes of this order, the interpretation of all terms shall be the same as those contained

in the legislation and the regulations made thereupon, unless defined below:

1.1 “Aerovox Canada” means Aerovox Canada Ltd. which owned and operated an electrical

capacitor manufacturing facility at 1565 Barton Street East in Hamilton Ontario and

shown on Figure 1 of Attachment “A” to this Order.


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1.2 “Aroclor 1242” means a name for a polychlorinated biphenyl compound mixture

marketed by the Monsanto Corporation.

1.3 “AVX” means AVX Corporation, a publicly traded corporation with its headquarters in

Fountain Inn, South Carolina, United States of America.

1.4 “Coca-Cola” means Coca-Cola Refreshments Canada Company who owns and operates a

facility located at 1575 Barton Street East in Hamilton, Ontario.

1.5 “Conceptual Site Model” means a representation of the surface and subsurfaceinformation with respect to the Properties including, but not limited to: (i) stratigraphic

and hydro-stratigraphic conditions; (ii) the lateral and vertical extent of the COC

identified as being on, in or under the Properties; (iii) possible pathways for the COC tomigrate from the Properties; and (iv) receptors to these COC through the consideration of

migration and exposure pathways. For the purposes of this Order, the Conceptual Site

Model is to be used to integrate applicable surficial and subsurface information relating

to the presence and movement of the COC in, on or under the Properties in order todesign measures to cease the migration of the COC from the Properties. The Conceptual

Site Model for the Properties shall be updated and as required further developed using

current best practices taking into consideration, but not being limited to the ASTME1689-95 (2014) - Standard Guidance for Developing Conceptual Site Models for

Contaminated Sites.

1.6 “COC” means contaminants of concern measured in groundwater, sediment, surface

water, soil and soil vapour on, in or under the Properties including, but not limited to:

Volatile Organic Compounds, Chlorinated Volatile Organic Compounds, PolychlorinatedBiphenyls (“PCB”), Polychlorinated Napthalenes (“PCN”), Polycyclic Aromatic

Hydrocarbons (“PAH”) and any other known contaminants and breakdown products as

deemed necessary by the Qualified Professional.

1.7 “District Manager” means the District Manager for the Ministry’s Hamilton District

Office.

1.8 “Laboratory” means a laboratory (ies) that is accredited by a Ministry approved

accreditation body and compliant with the International Standard ISO/IEC 17025. The

Laboratory’s accreditation must include accreditation for the COC to be assessed underthis Order.

1.9 “Ministry” means the Ontario Ministry of the Environment and Climate Change.

1.10 “Order” means this Director’s Order No. [this order #] issued on [Date]

1.11 “Parties” means collectively AVX, Coca-Cola, Rosart and Union Gas

1.12 “Properties” means the properties owned by Coca-Cola, Rosart and Union Gas shown on

Figure 2 of Attachment “A” to this Order

Draft Director’s Order Posted on the Environmental Registry for Public Comment

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1.13 “Qualified Professional” means, a professional practitioner (s) with sufficient expertise in

the assessment and remediation of groundwater, soil, soil vapour, sediment and surfacewater contamination, and in particular the remediation of the COC and must be a

licensed member of the Professional Engineers of Ontario, as required by the

Professional Engineers Act, R.S.O. 1990 and its regulations and or the Association ofProfessional Geoscientists of Ontario, as required by the Professional Geoscientists Act,

S.O. 2000, c.13 and its regulations.

1.14 “Rosart” means Rosart Properties Inc. who owns the property and the StrathBarton Malllocated at 1565 Barton Street East in Hamilton, Ontario.

1.15 “Union Gas” means Union Gas Limited who owns the property located at 360Strathearne Avenue North in Hamilton, Ontario.

Part 2: Legal Authority and Reasons

2.1

Pursuant to subsection 1(1) of the Environmental Protection Act, R.S.O. 1990, c. E. 19,

as amended ("EPA"), "contaminant" means any solid, liquid gas, odour, heat, sound,

vibration, radiation or combination of any of them resulting directly or indirectly fromhuman activities that may cause an adverse effect.

2.2 Section 17 of the EPA provides that the Director may order a person who causes or permits the discharge of a contaminant into the natural environment, so that land, water,

property, animal life, plant life, or human health or safety is injured, damaged or

endangered, or is likely to be injured, damaged or endangered, to repair the injury ordamage; to prevent the injury or damage; or, where the discharge has damaged or

endangered or is likely to damage or endanger existing water supplies, provide temporary

or permanent alternate water supplies.

2.3 Subsection 18(1) of the EPA provides that the Director may, by order, require a person

who owns or owned or who has or had management or control of an undertaking or

property to do any one or more of the following:

i. To have available at all times, or during such periods of time as are specified in the

order, the equipment, material and personnel specified in the order at the locationsspecified in the order;

ii. To obtain, construct and install or modify the devices, equipment and facilitiesspecified in the order at the locations and in the manner specified in the order;

iii. To implement the procedures specified in the order;

iv. To take all steps necessary so that procedures specified in the order will be

implemented in the event that a contaminant is discharged into the natural

environment from the undertaking or property;


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v. To monitor and record the presence or discharge of a contaminant specified in the

order and to report thereon to the Director;

vi. To study and to report to the Director on, (i) the presence or discharge of a

contaminant specified in the order; (ii) the effects of the presence or discharge of acontaminant specified in the order; (iii) measures to control the presence or discharge

of a contaminant specified in the order, (iv) the natural environment into which a

contaminant specified in the order may be discharged.

vii. To develop and implement plans to, (i) reduce the amount of a contaminant that is

discharged into the natural environment, (ii) prevent or reduce the risk of a spill of a

pollutant within the meaning of Part X, or, (iii) prevent, decrease or eliminate anyadverse effects that result or may result from a spill of a pollutant within the meaning

of Part X of the EPA or from any other discharge of a contaminant into the natural

environment, including a) plans to notify the Ministry, other public authorities and

members of the public who may be affected by a discharge, and b) plans to ensurethat appropriate equipment, material and personnel are available to respond to a

discharge.

viii. To amend a plan developed under paragraph vii or section 91.1 in the manner

specified in the order.

2.4 Subsection 18(2) of the EPA provides that the Director may make an order under

subsection 18(1) where the Director is of the opinion, based on reasonable and probable

grounds, that requirements specified in the order are necessary or advisable so as,

(a) to prevent or reduce the risk of a discharge of a contaminant into the natural

environment from the undertaking or property; or

(b) to prevent, decrease or eliminate an adverse effect that may result from,

(i) the discharge of a contaminant from the undertaking, or

(ii) the presence or discharge of a contaminant in, on or under the property.

2.5 Section 93 of the EPA provides that the owner of a pollutant and the person having

control of a pollutant that is spilled and that causes or is likely to cause an adverse effect

shall forthwith do everything practicable to prevent, eliminate and ameliorate the adverseeffect and to restore the natural environment.

2.6 Subsection 196(1) of the EPA specifies that the authority to make an order under the EPA

includes the authority to require the person or body to whom the order is directed to takesuch intermediate action or such procedural steps or both as are related to the action

required or prohibited by the order and as are specified in the order.


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2.7 From the late 1940’s until 1972, Aerovox Canada operated an electrical capacitor

manufacturing facility at 1565 Barton Street East in Hamilton which used PCBs, PCN’s,

solvents and chlorinated organic compounds in the manufacturing process.

2.8 Aerovox Corporation was incorporated in the State of Massachusetts in 1944. Aerovox

Corporation is a person that had management or control of 1565 Barton Street East inHamilton and the undertaking (namely, the manufacture of electrical capacitors including

the use of PCBs, solvents and chlorinated organic compounds in that process).

2.9 Aerovox Canada was a wholly owned subsidiary of Aerovox Corporation. Rather thanmerely exercising its rights as a shareholder and leaving the entire management of the

property or undertaking to Aerovox Canada’s directors, Aerovox Corporation chose to

manage, both strategically and operationally, Aerovox Canada’s property andundertaking.

2.10 Aerovox Corporation’s Annual Report for 1970 shows that Aerovox Corporation had five

manufacturing plants and three subsidiary corporations, including Aerovox Canada. Its1970 Annual Report details the extensive management and control exercised over all

property and operations whether owned directly or indirectly, including Aerovox

Canada’s property and operations:

(1) “Late in 1969, a reorganization of all functions was begun, integrating previously

autonomous units into a strong, centrally-controlled company headquartered in New Bedford. No staff or line function was left untouched.”;

(2) “As an immediate result, seventeen key managers now report to five vice presidents”;

(3)

“we began an immediate centralization of existing corporate functions inmanufacturing operations, industrial relations, marketing, budgets and internal

audit”;

(4) “Budget planning and management information systems are now centrallycoordinated”;

(5) “Julius G. Sonneborn, who had served as general manager of our Olean plant for10 years was promoted to Vice-President to direct all manufacturing activities”;

“Aerovox has five manufacturing facilities …”; “The management of

manufacturing plants was reorganized to provide improvement in the cost tomanufacture, the management of assets and return on investment. A corporate

operations staff became fully functional to direct the control of the manpower,

materials and facilities, and to coordinate manufacturing engineering and

purchasing.” “Manufacturing improvements were gained through better in-linecontrols, improved processes and methods, expanded automation and

mechanization in each location. …”


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(6) “Hyman L. Mohel, who has been with Aerovox since 1937, was appointed a Vice

President to direct the industrial relations of the Company”; “The new office of

industrial relations is responsible for the administration of management byobjectives program in addition to its normal duties of centralizing all personnel

programs. The effectiveness of this office has been demonstrated by the

successful negotiation of four labour contracts during 1970 at all plants – withouta work stoppage …”

(7) "Clifford H. Tuttle, who had been President of a highly regarded marketing

consulting firm, was selected as Vice President, Marketing/Sales"; "Aerovoxeliminated the duplicated sales efforts which occurred when each of the

manufacturing plants was responsible for selling its products through an

overlapping sales organizations. Management decided to build a unified salesteam, which would sell all of the Company's products through a network of

professional, engineering oriented, manufacturer's representatives"

2.11

Further, most of the members of Aerovox Canada’s Board of Directors were corporateofficers of Aerovox Corporation. For instance, in 1971 four of the five Directors of

Aerovox Canada were Aerovox Corporation’s President, Vice-President (Finance and

Treasurer), Vice-President (Manufacturing Operations) and Vice-President (Marketingand Sales).

2.12 In Aerovox Corporation’s Annual Report for 1971, the President of Aerovox Corporationstated that:

“Aerovox Canada Limited is nearing completion of a new 40,000 square footfacility located on a 10 acre site in the Amherst Industrial Park in Amherst, Nova

Scotia. We are moving our Canadian operations from Hamilton, Ontario because

of the economic advantages that are available in Amherst”. (emphasis added)

2.13 In 1971, ownership of 1565 Barton Street East was transferred from Aerovox Canada to

Rosart.

2.14 Manufacturing operations at 1565 Barton Street East ceased in May, 1972.

2.15 On January 1, 1973 Aerovox Corporation sold all shares in Aerovox Canada andsubstantially all of the operating assets of its Electrical Products Division (including a

plant in New Bedford, Massachusetts that was owned by Aerovox Corporation) to

Aerovox Industries, Inc.

2.16 AVX Corporation is the successor of Aerovox Corporation. In 1972, Aerovox

Corporation created and incorporated a subsidiary, AVX Ceramics Corporation. In 1973,

Aerovox Corporation and AVX Ceramics Corporation merged, resulting in AVXCeramics Corporation as the surviving corporation. Later in 1973, AVX Ceramics

Corporation changed its name to AVX Corporation.


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2.17 During the 1970s, Rosart developed 1565 Barton Street East for retail use and the

property is now known as the StrathBarton Mall.

2.18 Aerovox Canada’s plant in Amherst, Nova Scotia closed in 1992 and the company has

been inactive since 1994.

2.19 In 1950, Coca-Cola acquired the property located at 1575 Barton Street East and

continues to operate at this location. At a later date, Union Gas acquired the property

located at 360 Strathearne Avenue North.

2.20 During and after 1995, the Ministry became aware of the presence of the COC occurring

in the groundwater, sediment, soil and soil vapour on the Properties. At the request of the

Ministry, Coca-Cola, Rosart and Union Gas made submissions to the Ministry presentingassessments of the COC occurring in, on and under their respective properties. In

general, these submissions were made independently by each of the Properties with some

joint assessments provided by Coca-Cola and Rosart.

2.21

In 2008, monitoring conducted by Environment Canada and the Ministry at ten stations in

Hamilton Harbour pointed to an ongoing source of PCBs discharging to the east end of

the Harbour. In particular, monitoring results from the Strathearne Avenue slipdemonstrated anomalously high concentrations of PCBs in both water and passive

sampling devices.

2.22 In 2009-2010, the Ministry in collaboration with the City of Hamilton collected and

analyzed water samples and sediment cores from the Streathearne Avenue slip. The

results of this sampling pointed to the Strathearne combined sewer overflow (CSO) as anintermittent source of PCBs with a predominant signature of Aroclor 1242 to the slip.

Related analyses for the presence of polychlorinated naphthalenes (PCNs) in the

Streathearne Avenue slip also indicated the occurrence of anomalously highconcentrations of PCNs suggesting the contribution of these compounds also from the

Strathearne CSO. Formulations containing PCNs were used in a similar manner but prior

to that of Aroclor 1242 in the manufacture of capacitors suggesting that the occurrence of

both of these contaminants in the slip is potentially from the same originating source.

2.23 In 2010, as requested by the Ministry, Coca-Cola, Rosart and Union Gas jointly

submitted a memorandum presenting an assessment of the extent of the COC occurringon the Properties. This assessment concluded that the lateral extent of the COC

groundwater plumes was consistent with the migration of groundwater along former and

currently in-filled ditches located along the northern extent of the Rosart property and onthe eastern extent of the Rosart and Union gas properties. Previous industrial activities

occurring on the Rosart property was suggested as the likely source of the COC occurring

on the Properties. This memorandum did not present the vertical extent of

contamination on the Properties nor discuss other potential pathways (i.e. buried utilities,catch basins, sub-grade piping) for COC to migrate from the Properties onto adjacent

properties.


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2.24 In 2013, the Ministry produced a technical memorandum entitled Water Sampling in East

Hamilton Combined Sewers, 2010 – 2012, documenting results from sampling conducted

by the Ministry and City of Hamilton staff. Results presented in the memo indicated: (i)anomalously high levels of Aroclor 1242 in the Strathearne combined sewer; and (ii) that

a significant source of these compounds to the Strathearne combined sewer is located

south of the CN rail lands which interrupt Strathearne Avenue.

2.25 In 2013, the Ministry produced a technical memorandum entitled 2012 - 2013 Sewer

Sampling at 1565 & 1575 Barton Street East and 360 Strathearne Avenue, Hamilton,

Ontario, documenting results of storm and sanitary sewer sampling undertaken on theProperties. The results of this study further suggested that the COC on the Properties is a

source of PCBs to Hamilton Harbour due to the consistency in Aroclor profiles between

those measured on the Properties and those measured in the Strathearne avenue combinedsewer and slip. In addition, the consistency in the spatial patterns between the 2009

groundwater monitoring results on-site and the 2012-2013 catchbasin sampling also on-

site suggests that PCB contamination in groundwater from the Properties is entering the

Hamilton sewer system, and hence, there is a direct connection to the Harbour during anoverflow event. Further, total PCB concentrations measured in groundwater and water in

the sewers on the Properties are high enough to explain the trends observed downstream

in the Strathearne combined sewer system.

2.26 In September 2013, the Ministry met with representatives of the owners of the Properties

to discuss the PCB studies and the need to address the potential off-site impacts. Duringthis meeting, the Ministry provided a presentation to the attendees entitled “Water

Sampling in East Hamilton Combined Sewers, 2010 – 2012 & 2012 – 2013, Sewer

Sampling at 1565 & 1575 Barton Street East and 360 Strathearne Avenue, Hamilton,

Ontario”. Representatives of the Properties were also provided with a draft Provincial

Officer's Order setting out requirements to the Properties to hire a single qualified person

to undertake further delineation studies on the Properties and to develop an action plan toaddress off-site impacts.

2.27 During an October 2013 meeting, representatives of the Properties agreed to voluntarily

develop proposals to assess and curtail off-site impacts from their sites. Therepresentatives also urged the Ministry to pursue AVX Corporation as the person

responsible for the contamination occurring on their properties and agreed to provide

work plans to update historical monitoring that took place on the Properties. It wasagreed that, even with voluntary measures, there would be an over-arching agreement

signed by all Parties with clear timelines and deliverables.

2.28

In December 2013, the Ministry received a sampling plan submitted jointly by the owners

of the Properties. A review of the plan by a Ministry Hydrogeologist concluded that the

efforts in the short term would be better directed towards a more thorough interpretation

of existing data for the Properties to better interpret the extent, fate and behaviour of theCOC before undertaking a further round of sampling from existing sampling locations.

The development of hydrostratiographic cross-sections along the western property

boundary and at the location of potential migration pathways such as buried piping and


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trenches for this piping would allow for more focused sampling and assessments to

determine if COC are migrating from the Properties. Requests in the submitted plan for

delineation to be undertaken on lands adjacent to the Properties by the owners of theadjacent properties was considered as premature until there is a better understanding of

the migration of the COC from the Properties.

2.29 By February 2014, the Ministry also received plans submitted individually by each of the

three Properties to mitigate the migration of contaminants from each of the Properties.

2.30 In March 2014, the ministry provided preliminary results of manhole and catchbasinwater and sediment sampling undertaken by the Ministry on November 20, 2013. The

manholes are located along the hydro line corridor which runs adjacent to the Rosart and

Union Gas properties and are accessed as needed by Horizon Utilities staff. Sedimentsamples from the north-most manhole and the manhole adjacent to the south entrance of

the Union Gas property indicated elevated levels of PCBs consistent with the documented

contamination on the adjacent properties. The most southern manhole near the

intersection of Barton and Strathearne Avenues and the catch basins in Mahoney Parkindicated levels consistent with urban background levels for locations that are not

impacted by nearby contaminant sources.

2.31 In February 2015, the Ministry received a report from Union Gas documenting work

completed by it during 2014 to characterize and eventually disconnect a storm sewer and

associated catch basins from the Strathearne Avenue combined sewer at the Union GasProperty, which was completed as part of the decommissioning of the property.

Sampling conducted by Union Gas identified the southernmost storm sewer and

associated catch basins as being infiltrated by PCB’s and chlorinated solvents occurringin groundwater and thus having the potential to be a pathway for these contaminants to

migrate from the Union Gas property. Sampling conducted by Union Gas in other storm

sewers located on the Union Gas property did not identify levels of PCB’s andchlorinated solvents above “applicable standards” and thus only the southernmost storm

sewer was the focus of the decommissioning and disconnection efforts. The submitted

report concluded that efforts were successful to eliminate the southernmost storm sewer

and associated catch basins as a potential migration pathway for impacted groundwaterand sediment. The report also documents that work crews were unable to locate the

westernmost segment of pipe connecting the now decommissioned storm sewer to the

Strathearne Avenue sewer. Excavations made to locate this segment of storm sewer piping also revealed elevated levels of PCB’s in soil further north into the Union Gas

property.

2.32

I am of the opinion that the efforts taken to date and the recently proposed plans provided

by representatives of the Properties to further assess the contamination on the Properties

are not sufficient to result in an appropriate understanding of the lateral and vertical

extent of the presence of the COC in sediment, soil, groundwater and soil vapour on theProperties. Further, efforts undertaken to date by representatives of the Properties have

not given significant regard to the potential migration of COC from the Properties. The

Ministry views the work undertaken by Union Gas in 2014 to assess and decommission a


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storm sewer on its property as an appropriate step to prevent the potential migration of

COC from this property. At this time, due to the aforementioned lack of information, I

am not able to determine if this action or several additional actions are required of AVX,Union Gas, Rosart and Coca-Cola to successfully cease the migration of all COC from

the Properties. For these reasons, I am of the opinion that that the requirements specified

below are necessary and advisable so as to:

i. prevent or reduce the risk of the discharge of contaminants into the natural

environment from the Properties;

ii. to prevent, decrease or eliminate an adverse effect that may result from the

discharge of a contaminant from the undertaking; or from the presence or

discharge of a contaminant in, on or under the Properties.

Part 3: Work Ordered

Pursuant to Sections 17, 18 and 196 of the EPA, I hereby order the Parties to take all stepsnecessary to do the following:

Part 3.1 – Jointly Retain a Qualified Professional(s) and Laboratory(ies)

3.1.1 Within 60 days after the date of this Order jointly retain a Qualified Professional(s) and

Laboratory (ies) to prepare and complete, or supervise, the work specified in this Order.

3.1.2 Within 5 days of retaining the Qualified Professional referenced in Part 3.1.1 of this

Order; jointly provide written confirmation to the District Manager that the QualifiedProfessional and Laboratory have been retained.

Part 3.2 - Provide Data and Reports to the Qualified Professional

3.2.1 Within 30 days of retaining the Qualified Professional referenced in Part 3.1.1 of this

Order, provide to the Qualified Professional and the District Manager: (i) all available

data and reports prepared by currently retained consultants as well as previously retainedconsultants, pertaining to the COC identified in soil, surface water, groundwater, soil

vapour and sediment in, on or under the Properties; and (ii) if available, inventories and

quantities of PCB formulations and other chemicals used during plant operations at theAerovox Canada Hamilton facility and any information regarding activities that led to the

eventual contamination of the soil, surface water, groundwater, soil vapour and sediment

on the Properties. Where possible, the data shall be provided in an electronic format, asspecified by the Qualified Professional.

3.2.2 Within 5 days of completing the requirements of Part 3.2.1 of this Order, provide written

confirmation to the District Manager that all available data and reports pertaining to theCOC identified on the Properties have been submitted to the Qualified Professional and

the District Manager.


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Part 3.3 – Jointly Submit a Workplan and Schedule

3.3.1 Within 30 days of completing the requirements of Part 3.2.1 of this Order, jointly submit

to the District Manager a written work plan and schedule prepared by the Qualified

Professional to complete the following:

3.3.1.1 Review available data and reports pertaining to the COC identified on the Properties;

3.3.1.2 Develop a single preliminary Conceptual Site Model for the Properties based onavailable data and reports pertaining to the COC identified in, on and under the

Properties. The preliminary Conceptual Site Model will be utilized to determine if

sufficient information is available to design measures to cease the migration of theCOC from the Properties. The development of the preliminary Conceptual Site Model

shall consist of and consider but not be limited to:

i.

the results of representative sampling and analysis of the COC ingroundwater, sediment, soil, soil vapour and surface water (including storm

water) collected on the Properties;

ii. a summary and interpretation of all field, analytical data, and certificates ofanalysis in order to evaluate and interpret the distribution of the COC in any

groundwater, sediment, soil, soil vapour and surface water (including storm

water) on the Properties;iii. plan view maps showing the property boundaries, all monitoring well/test

hole/test pits utilized along with any surface water features, buried utilities,

water mains, catch basins, storm sewers, sanitary sewers, water mains andother piping. All maps shall contain an appropriate scale, legend and north

arrow;

iv.

plan view map(s), showing groundwater elevation contours and groundwaterflow directions;

v. groundwater contaminant delineation map(s) showing isopleths for each COC

on the Properties based upon the findings obtained in accordance with this

Order and delineated to the extent practicable to the applicable criterion setout on Table 3 of the Ministry document “Soil, Ground Water and Sediment

Standards for Use under Part XV.1 of the Act” dated April 15, 2011, showing

the groundwater analytical results with all exceedences for the COC of theapplicable criterion being highlighted;

vi. accurate and representative cross-sectional drawings in both the direction of

groundwater flow and transverse to the direction of groundwater flow. Thecross-sectional drawings are to show the stratigraphy; the location and

construction details of all monitoring wells that are located along or near the

cross-section with exceedences of the applicable standard being highlighted;

groundwater elevations from locations that are along or near the cross-section;and the location of buried utilities, water mains, catch basins, storm sewers,

sanitary sewers, and water mains and any surface water features along or near

the cross-section;


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vii. monitoring well/borehole logs, water well records as per Ontario Regulation

903;

viii. any other details required to be presented as determined to be necessary by theQualified Professional.

3.3.1.3 Identify any data gaps preventing the completion of the preliminary Conceptual SiteModel and make recommendations for additional work to be undertaken on the

Properties in order to finalize the preliminary Conceptual Site Model;

3.3.1.4 Prepare a report setting out the preliminary Conceptual Site Model developed in Part3.3.1.2 of this Order and a workplan and schedule to undertake the additional work

identified in Part 3.3.1.3 of this Order;

3.3.1.5 Develop remedial options to be undertaken on the Properties to stop the migration of

the COC from the Properties. The remedial options shall give regard to eliminating

pathways for the migration of the COC from the Properties identified by the finalized

Conceptual Site Model including but not limited to: (i) storm sewers connecting to theStrathearne combined sewer; (ii) subsurface piping (sanitary sewers, water supply),

subsurface utilities and catch basins; (iii) aggregate packing and other subsurface

materials installed in and around the potential pathways mentioned in (i) and (ii); (iv)existing subsurface and surface features such as in-filled drainage ditches and surface

water pathways; and (v) any other potential pathways as identified by the Qualified

Professional. For each migration pathway identified, a remedial options analysis shall be provided including:

a. a listing of potential remedial options for each identified pathway;

b. a description of each remedial option;c. the effectiveness of each option to mitigate COC migration from the Properties;

d. the feasibility and/or challenges for implementing each option at the Properties;

e.

the duration of the proposed options and ongoing inspection, operation (asrequired) and maintenance requirements;

f. a recommendation for the preferred option; and

g. additional decision making criteria as set out by the Qualified Professional.

3.3.1.6 Prepare and jointly submit a report to the District Manager setting out: (i) the final

Conceptual Site Model updating the preliminary Conceptual Site Model presented in

Part 3.3.1.4 of this Order; (ii) conceptual designs prepared for the preferred remedialoptions developed in accordance with Part 3.3.1.5 of this Order; (iii) monitoring

activities to demonstrate that the COC are not migrating from the Properties; and (iv) a

workplan and schedule to implement the preferred remedial options and monitoring programs on the Properties;

Part 3.4 – Jointly Implement the Work Plan

3.4.1 Upon receiving written approval from the District Manager, jointly implement the work

plan submitted as set out by Part 3.3.1 of this Order. This work shall be supervised by

the Qualified Professional.


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property, equipment or facility is required for doing the things required by this Order, is

prevented or is otherwise inaccessible. The written notice shall state why the access is

required, and the details and reason why access has been prevented or is otherwiseinaccessible.

3.7.6

All written reports and submissions required to be submitted to the Ministry pursuant tothis Order shall be final and not be labelled as draft nor include any reference to being

draft information. All written reports are to be signed by the Qualified Professional as

applicable.

3.7.7 All written reports that require the signature of the Qualified Professional, submitted to

the Ministry pursuant to this Order, shall contain a signed declaration made by the

Qualified Professional responsible for the written report, as follows:

“I have read Order [this order #] and I have the appropriate expertise and skill to

do the work for which I have been retained.”

Part 4: General

4.1 All orders are issued in the English language and may be translated into the Frenchlanguage. In the event that there should be a conflict between the English original and the

French translation, the English original shall prevail.

4.2 The requirements of this Order are severable. If any requirement of this Order or the

application of any requirement to any circumstance is held invalid, the application of

such requirement to other circumstances and the remainder of the order shall not beaffected thereby.

4.3 Subsection 19(1) of the EPA provides that an order of the Director is binding upon thesuccessor or assignee of the person to whom it is directed.

4.4 Subsection 186(2) of the EPA provides that non-compliance with the requirements of this

order constitutes an offence.

4.5 Any request to change a requirement in this Order shall be made in writing to the

Director, with reasons for the request, at least 14 days prior to any compliance date forthat requirement.

4.6 Unless stayed, this Order is effective from the date of service. The requirements of thisOrder are minimum requirements only and do not relieve you from complying with the

following:

(a) any applicable federal legislation,(b) any applicable provincial legislation or requirements that are not addressed in this

Order, and

(c) any applicable municipal law.


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4.7 Notwithstanding the issuance of this Order, further or other orders may be issued in

accordance with legislation as circumstances require. In particular, the Director shallissue an order where the approval of the Director is required in respect of a matter under

this Order and,

i. the Director does not grant approval; or

ii. the Director does not grant approval because the changes which the Director

considers necessary for granting approval have not been agreed to by the Parties.

4.8 In the event that any party to this Order is, in the opinion of the Director, rendered unable

to perform or comply with any obligations herein because of:

i. natural phenomena of an exceptional, inevitable or irresistible nature, or

insurrections; or

ii. strikes, lockouts or other labour disturbances; or

iii.

inability to obtain materials or equipment for reasons beyond the control of the party;or

iv. any other cause whether similar to or different from the foregoing beyond the

reasonable control of the party,

the obligations hereof, as they are affected by the above shall be adjusted in a manner

defined by the Director. To obtain such an adjustment, the party must notify the Directorimmediately of any of the above occurrences, providing details that demonstrate that no

practical alternatives are feasible in order to meet the compliance dates in question.

4.9 Failure to comply with a requirement of this Order by the date specified does not absolve

the Parties from compliance with the requirement. The obligation to complete the

requirement shall continue each day thereafter.

4.10 This Order has no expiry date.

Part 5: Hearing before the Environmental Review Tribunal

5.1 Under section 140 of the EPA you may require a hearing before the Environmental

Review Tribunal, if, within fifteen days after service upon you of this Order, you servewritten notice upon the Environmental Review Tribunal and the Director.

5.2 Section 142 of the EPA provides that the notice requiring the hearing must include astatement of the portions of the order for which the 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.

5.3 Written notice requiring a hearing can be served upon:


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The Secretary and Director

Environmental Review Tribunal Ministry of the Environment and

655 Bay Street, 15th Floor Climate ChangeToronto, Ontario, M5G 1E5 119 King Street West, 9

th Floor

Fax: (416) 326-5370 Hamilton, Ontario, L8P 4Y7

Email: [email protected] Fax: (905) 521-7608Tel: (905) 521-7650

Further information on the Tribunal and requirements for an appeal can be obtained

directly from the Tribunal by:

Tel: (416) 212-6349 or 1-866-448-2248 Fax: 1(844) 213-3474

TTY 1-800-855-1155 via Bell Relay Web: www.ert.gov.on.ca

Service of the documentation referred to above can be made personally, by mail, by fax,

by commercial courier or by email in accordance with the legislation under which the

Order is made and any corresponding Service Regulation. Further information can beobtained from e- Laws at www.e-laws.gov.on.ca. Please note that choosing service by

mail does not extend any of the above mentioned timelines.

5.4 If you commence an appeal before the Environmental Review Tribunal, under

section 47 of the Environmental Bill of Rights (EBR), you must give notice to the public

in the EBR registry. The notice must include a brief description of this Order (sufficientto identify it) and a brief description of the grounds of appeal. The notice must be

delivered to the Environmental Commissioner who will place it on the EBR registry. The

notice must be delivered to the Environmental Commissioner at 605-1075 Bay Street,Toronto, Ontario M5S 2B1 by the earlier of:

5.4.1 2 days of commencing the appeal before the Tribunal; and

5.4.2 15 days after service of this Order.

5.5 Pursuant to subsection 47(7) of the EBR, the Environmental Review Tribunal may permitany person to participate in the appeal, as a party or otherwise, in order to provide fair

and adequate representation of the private and public interests, including governmental

interests, involved in the appeal.

5.6 For your information, under section 38 of the EBR, any person resident in Ontario

with an interest in this Order may seek leave to appeal the Order. Under section 40 of theEBR, the application for leave to appeal must be made to the Environmental Review

Tribunal by the earlier of:

5.6.1 15 days after notice of this Order is given in the EBR registry; and

5.6.2 if you appeal, 15 days after your notice of appeal is placed in the EBR registry by theEnvironmental Commissioner.


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mailto:[email protected]:[email protected]:[email protected]:[email protected]


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To ascertain whether or not an application for leave to appeal this Order has been made byany person, you may wish to periodically check the EBR registry up to a few business days

after the period mentioned in paragraphs 5.6.1 and 5.6.2 above. Information about how to

access the EBR registry is available from your local library or by calling the Ministry of theEnvironment at 1-800-565-4923.

Unless stayed by application to the Environment Review Tribunal under Section 143 of

the EPA this Order is effective from the date of issue.

Issued at Hamilton this ________________ day of _________, 2015.

_______________________

Director

Ministry of the Environment and Climate Change


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Attachment “A”


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Attachment “A”: Figure 1 – Site plan showing location of the former Aerovox Canada

facility


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Attachment “A”: Figure 2 – The Properties

Draft Director’s Order Posted on the Environmental Registry for Public Comment Page 20 of 20

Documents

Hamilton order