Ministry of the Environment

and Climate Change

Ministre de lEnvironnement et de lAction
en matire de changement climatique
Order Number:
Incident Report No:

Director's Order
Environmental 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.

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 subsurface

information 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 to
migrate 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 to
design 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 ASTM
E1689-95 (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, Polychlorinated
Biphenyls (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 Ministrys 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
Laboratorys accreditation must include accreditation for the COC to be assessed under
this Order.

1.9

Ministry means the Ontario Ministry of the Environment and Climate Change.

1.10

Order means this Directors 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

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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 surface
water 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 of
Professional 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 Mall
located at 1565 Barton Street East in Hamilton, Ontario.

1.15

Union Gas means Union Gas Limited who owns the property located at 360
Strathearne 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 from
human 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 or
damage; 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 locations
specified in the order;
ii. To obtain, construct and install or modify the devices, equipment and facilities
specified 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 a
contaminant 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 any
adverse 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 ensure
that 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 adverse
effect 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 take
such 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 1940s until 1972, Aerovox Canada operated an electrical capacitor
manufacturing facility at 1565 Barton Street East in Hamilton which used PCBs, PCNs,
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 in
Hamilton 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 than
merely exercising its rights as a shareholder and leaving the entire management of the
property or undertaking to Aerovox Canadas directors, Aerovox Corporation chose to
manage, both strategically and operationally, Aerovox Canadas property and
undertaking.

2.10

Aerovox Corporations Annual Report for 1970 shows that Aerovox Corporation had five
manufacturing plants and three subsidiary corporations, including Aerovox Canada. Its
1970 Annual Report details the extensive management and control exercised over all
property and operations whether owned directly or indirectly, including Aerovox
Canadas 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 in
manufacturing operations, industrial relations, marketing, budgets and internal
audit;
(4) Budget planning and management information systems are now centrally
coordinated;
(5) Julius G. Sonneborn, who had served as general manager of our Olean plant for
10 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 to
manufacture, 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-line
controls, 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 by
objectives 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 without
a work stoppage
(7) "Clifford H. Tuttle, who had been President of a highly regarded marketing
consulting firm, was selected as Vice President, Marketing/Sales"; "Aerovox
eliminated 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 sales
team, 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 Canadas Board of Directors were corporate
officers of Aerovox Corporation. For instance, in 1971 four of the five Directors of
Aerovox Canada were Aerovox Corporations President, Vice-President (Finance and
Treasurer), Vice-President (Manufacturing Operations) and Vice-President (Marketing
and Sales).

2.12

In Aerovox Corporations Annual Report for 1971, the President of Aerovox Corporation
stated that:
Aerovox Canada Limited is nearing completion of a new 40,000 square foot
facility 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 and
substantially 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 AVX
Ceramics 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 Canadas 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 presenting
assessments 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 slip
demonstrated 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 an
intermittent 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 high
concentrations 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 occurring
on 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 on
the 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 the
Properties. 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 combined
sewer 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 onsite 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 an
overflow 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. During
this 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 to
address 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. The
representatives 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 was
agreed 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 the
COC 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 the
adjacent 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 catchbasin
water 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. Sediment
samples 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 Park
indicated 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 Gas
Property, 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 PCBs and chlorinated solvents occurring
in 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 PCBs and
chlorinated 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 groundwater
and 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 PCBs 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 the
Properties. 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 steps
necessary 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 Qualified
Professional 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 retained
consultants, 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 the
Aerovox 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, as
specified 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 the
COC 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 on
available 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 the
COC from the Properties. The development of the preliminary Conceptual Site Model
shall consist of and consider but not be limited to:
i.

ii.

iii.

iv.
v.

vi.

the results of representative sampling and analysis of the COC in

groundwater, sediment, soil, soil vapour and surface water (including storm
water) collected on the Properties;
a summary and interpretation of all field, analytical data, and certificates of
analysis 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;
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 and
other piping. All maps shall contain an appropriate scale, legend and north
arrow;
plan view map(s), showing groundwater elevation contours and groundwater
flow directions;
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 set
out 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 the
applicable criterion being highlighted;
accurate and representative cross-sectional drawings in both the direction of
groundwater flow and transverse to the direction of groundwater flow. The
cross-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.
viii.

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

903;
any other details required to be presented as determined to be necessary by the
Qualified Professional.

3.3.1.3

Identify any data gaps preventing the completion of the preliminary Conceptual Site
Model 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 Part
3.3.1.2 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 the
Strathearne 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 (as
required) 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 remedial
options 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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Part 3.5 Jointly Submit Preliminary Conceptual Site Model and Data Gaps Report
3.5.1

Within 120 days of receiving approval under Part 3.4.1 of this Order, jointly submit the
report set out in Part 3.3.1.4 of this Order, prepared by the Qualified Professional, to the
District Manager for review and comment.

Part 3.6 Jointly Finalize Conceptual Site Model, Develop Remedial Options and Jointly
Submit Final Report
3.6.1

Upon receiving written comments from the District Manager and within the timelines set
out by the District Manager, jointly: (i) incorporate comments regarding the report
submitted as required by Part 3.5.1 of this Order; and (ii) undertake the additional work
set out in Parts 3.3.1.4 to 3.3.1.6 inclusively. This work shall be supervised by the
Qualified Professional.

3.6.2

Within 30 days of commencing the work required by Part 3.6.1, jointly submit to the
District Manager progress reports prepared by the Qualified Professional on a monthly
basis or other interval as set out by the District Manager.

Part 3.7 Other Requirements

3.7.1

In this Order a reference to a licence, permit, approval, plan, protocol or similar

document includes any amendments thereto from time to time.

3.7.2

The Parties to this Order shall in a timely manner share all relevant information within
their possession or control with the other named Parties to this Order, where the
information is relevant to the other named Party doing the things required by this Order.

3.7.3

The Parties to this Order shall in a timely manner share with the other named Parties to
this Order any submissions made to the Ministry in accordance with this Order.

3.7.4

Pursuant to subsection 196(2) of the Environmental Protection Act (EPA), immediately

upon issuance of this Order, the Parties, where they have ownership or exercise
management or control of property, or have ownership or exercise management or
control of environmental monitoring equipment or facilities shall permit the Parties, or
their agents, access to the property or the environmental monitoring equipment or
facilities where access to the property, equipment or facilities is required for doing the
things required by this Order. The Parties shall be responsible for the proper
maintenance of the environmental monitoring equipment, including all monitoring wells,
required for doing the things required by this Order. In the event of any damage to the
monitoring equipment required for doing the things required by this Order, the Parties
shall ensure that any damage is repaired in accordance with Ontario Regulation 903 and
the well casing resurveyed such that the requirements of this Order can be met.

3.7.5

A Party to this Order shall immediately notify the District Manager verbally and in
writing if access to any property, or monitoring equipment or facility, where access to the

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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 otherwise
inaccessible.
3.7.6

All written reports and submissions required to be submitted to the Ministry pursuant to
this 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 French
language. 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 be
affected thereby.

4.3

Subsection 19(1) of the EPA provides that an order of the Director is binding upon the
successor 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 for
that requirement.

4.6

Unless stayed, this Order is effective from the date of service. The requirements of this
Order 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 shall
issue 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 Director
immediately 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 serve
written 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 a
statement 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
Environmental Review Tribunal
655 Bay Street, 15th Floor
Toronto, Ontario, M5G 1E5
Fax: (416) 326-5370
Email: ERTTribunalsecretary@ontario.ca

Director
Ministry of the Environment and
Climate Change
119 King Street West, 9th Floor
Hamilton, Ontario, L8P 4Y7
Fax: (905) 521-7608
Tel: (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
TTY 1-800-855-1155 via Bell Relay

Fax: 1(844) 213-3474

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 be
obtained 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 (sufficient
to 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 permit
any 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 the
EBR, 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 the
Environmental Commissioner.

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To ascertain whether or not an application for leave to appeal this Order has been made by
any 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 the
Environment 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

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