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Proposed redevelopment of the Oshawa Marina

Petition: No. 59

Issue(s): Compliance and enforcement, human health/environmental health, toxic substances, transport, waste management, and water

Petitioner(s): Lake Ontario Waterkeeper

Date Received: 5 November 2002

Status: Completed

Summary: This petition concerns the Oshawa Harbour Commission's (OHC) proposal to redevelop the Oshawa Marina. The petitioner alleges that the proposal involves infilling a former waste disposal site located on the Marina's property. The petitioner suggests that the site contains hazardous waste that is leaking into the Oshawa Harbour and, subsequently, into Lake Ontario. The petitioner is also concerned about potential violations of the Fisheries Act and has requested information about federal regulatory controls and environmental assessment requirements for redeveloping the site.

Federal Departments Responsible for Reply: Environment Canada, Fisheries and Oceans Canada, Transport Canada

Petition

[October 31, 2002]

Petition regarding the proposed redevelopment of the Oshawa Marina

Background

A former hazardous waste disposal site lies adjacent to the Lake Ontario shoreline in Oshawa, Ontario. The site accepted wastes between 1937 and 1957 and is considered to be contaminated by hazardous materials.

The Oshawa Harbour Commission assumed control of the harbour area in 1960, at which time the waste disposal site was not uncovered. The waste site lay undisturbed until 1976 when the Oshawa Harbour Commission created Basin 3 to provide additional docking space for the Oshawa Marina, then called the Durham Cruise Marina.

Numerous reports commissioned by various parties since 1983 describe levels of contamination within the site, the surrounding area, the surface waters of Lake Ontario, and the harbour sediments. The barrels which once contained waste such as paints, thinners, and paint sludges can now be seen protruding from the banks of the nearby Montgomery Creek.1

In May of this year, the Harbour Commission announced that the Oshawa Marina and Yacht Club would be closed, that Basin 3 would be filled, and that the site would be paved over to create a parking lot.2 The Harbour Commission cited environmental and financial reasons and instructed marina users to leave the property by October 1, 2002.

The old hazardous waste site can be considered federal land because it lies within Harbour Commission jurisdiction. Such land would be exempt from provincial environmental legislation, suggesting that diligent enforcement and application of federal laws is the only way to protect the health of the surrounding community and environment. To these ends, the concerns and questions outlined in the section below address the applicability of federal environmental and accountability mechanisms.

Concerns and questions

The following section outlines a number of concerns and provides a list of questions designed to address each concern. LOK would appreciate a formal response to each question from the appropriate government agency.

Federal government investigations and abatement activity and policies

The Oshawa Harbour Commission (OHC) exposed hazardous wastes in 1976 during expansion of the Marina.3 Both Environment Canada and the OHC have known since at least 1983 that the hazardous waste site was not properly contained and presented a potential threat to environment and health4, yet the OHC has been allowed to continue operating the site without being subject to voluntary or mandatory abatement proceedings.

Numerous reports since 1983 have indicated that the landfill is likely contaminating the Oshawa Harbour. One 1994 report states on at least two occasions that remediation of the old landfill is required under the Fisheries Act.5

Recent statements made to the press by Donna Taylor, CEO of the Oshawa Harbour Commission, suggest that stricter oversight on the part of environmental officials might have led to more remediation activities in the last two decades.6

Question 1: Has Environment Canada at any time initiated an investigation into possible Fisheries Act violations resulting contamination leaking from the former hazardous waste disposal site?

Question 2: If no, why has Environment Canada neglected to initiate such an investigation in light twenty years' of reports and studies which indicate the landfill is likely contaminating Lake Ontario? If yes, when was the investigation conducted, how was it carried out, and what were the findings?

Question 3: Further to the comments made by Ms. Taylor, what is the official policy of the Government of Canada regarding the obligations of Harbour Commissions in ensuring property within Harbour Commission jurisdiction complies with environmental laws? Does a lack of notice from environmental authorities absolve Harbour Commissions from responsibility for investigating or addressing environmental concerns?

Question 4: What is the status of the Oshawa Harbour and surrounding Harbour Commission lands with regards to the "Federal Contaminated Sites and Solid Waste Landfills Inventory?" Is there any federal legislation relating to contaminated sites on federal lands?

Process-related legislation and policy

The Oshawa Harbour Commission gave notice on May 21, 2002 that the Oshawa Marina would be closing, citing environmental reasons and future capital expenditures. Statements made to the press by Harbour Commission CEO Donna Taylor7 together with twenty years' of inactivity with regards to the landfill site raise concerns that compliance with environmental laws and policies may not be the Harbour Commission's primary objective. LOK seeks to ensure that these laws and policies are respected.

In order to proceed with the plan described in its May 21, 2001 press release ("A New Future for the Port Oshawa Marina"), it would appear that the Oshawa Harbour Commission must secure permits under the Fisheries Act8, the Navigable Waters Protection Act9, and Ontario's Lakes and Rivers Improvement Act10. Further, LOK is of the opinion that the project should undergo at least a Comprehensive Screening Environmental Assessment under the Canadian Environmental Assessment Act11. Such a process would be consistent with the Commissioner of the Environment and Sustainable Development's recommendation that "regulations be developed to remove gaps for federal entities not covered by the Canadian Environmental Assessment Act." It would also address concerns that "present processes offer no guarantees of public participation for larger projects, have a lack of documentation on the review process and a lack of transparency."12

A recent media report states that Transport Canada has already given its approval for the project, pending development of a remediation plan.13 At the same time, the Harbour Commission has not yet released its most recent evaluation of the site and a federal government study has yet to begin.14

Question 5: Has a Fisheries Act permit been applied for or secured for this project?

Question 6: Has a Navigable Waters Protection Act permit been applied for or secured for this project?

Question 7: Has a Project Description or any other document pertaining to redevelopment, remediation, or other in-filling, capping, or dredging activities at the Oshawa Harbour been submitted to the Canadian Environmental Assessment Agency or any other Responsible Authority under CEAA?

Question 8: Does the Canadian Environmental Assessment Act apply to Harbour Commissions? If so, given that Harbour Commissions would be required to initiate environmental assessments "as early as is practicable in the planning stages of the project and before irrevocable decisions are made,"15 what steps have been taken by the OHC or federal agencies such as Transport Canada and the Canadian Environmental Assessment Agency to ensure that the standards set forth in the Canadian Environmental Assessment Act are met in this case?

Question 9: If no permits have been secured and no project description been submitted for environmental assessment, by what authority has Transport Canada authorized the project? What policies or legislation allow Transport Canada to approve the staged plan prior to the development of an appropriate environmental plan?

Question 10: Is there a project description or report? If so, could LOK be given a copy of such reports?

Question 11: What public notice requirements are the Oshawa Harbour Commission and related federal or provincial agencies such as Transport Canada, Department of Fisheries and Oceans, the Canadian Environmental Assessment Agency, and Environment Canada required to follow in order to undertake this project? Requirements may include but are not limited to: providing notice of the plan to close the marina, providing notice of the plans for addressing the old hazardous waste site, issuing copies of reports and plans for the site, encouraging public consultation, and providing notice of the intent to fill in portions of the Oshawa Harbour?

Question 12: LOK formally requests that a federal Environmental Assessment be conducted and that the process be - at minimum - a Comprehensive Study. If it is determined that the Canadian Environmental Assessment Act does not apply to the Oshawa Harbour Commission, are Transport Canada, the Oshawa Harbour Commission, or any other project proponent(s) prepared to follow the spirit of the Canadian Environmental Assessment Act?

Question 13: In light of the advanced nature of the Oshawa Harbour Commission's proposal, LOK requests that the Ministries responsible for issuing project permits formally advise the Oshawa Harbour Commission of its legal responsibilities and undertake diligent monitoring to ensure that these responsibilities are fulfilled and that LOK receive a copy of documents distributed for these purposes.

Accountability

As an arm's-length federal agency, the Oshawa Harbour Commission does not appear to be directly accountable to the residents of Oshawa or to the residents of Canada. The process by which the Marina has been closed and the remediation plan proposed has lacked significant public involvement, fairness, and transparency. Comments made to the press by CEO Donna Taylor16 suggest that the OHC may be under the impression that it is unbound by the obligations of due process.

Ms. Taylor's statement also suggests that the OHC exercises sole authority over the Oshawa Harbour. R. v. Meyers (1853), however, clearly establishes the role of the crown as that of "the guardian of public rights", noting that the crown is "entitled to prosecute and to cause the removal of any obstacles which obstruct the exercise of public right, and cannot by force of its prerogative curtail or grant that which it is bound to protect and preserve for public use."

Question 14: What accountability mechanisms (i.e., policies or legislation) are in place which would prevent the Oshawa Harbour Commission from undertaking its in-filling or capping project without complying with the procedures discussed in the previous section? More generally, which of these mechanisms ensures that the OHC cannot undertake any project with impunity which may have an adverse environmental impact?

Question 15: Is the Oshawa Harbour Commission an agent of the federal government, acting in a guardian capacity on behalf of the federal government? Or, has the federal government relinquished its jurisdiction over the Oshawa Harbour to the Oshawa Harbour Commission, a non-government entity?

Question 16: Does the Oshawa Harbour Commission have an obligation to protect public rights to the Oshawa Harbour, including its waters and fisheries? If so, what policies and accountability mechanisms exist to ensure the OHC protects these rights?

Appropriate departments

We anticipate that portions of this petition would be directed to the attention of:

Environment Canada
Fisheries and Oceans Canada
Transport Canada

Supporting documentation

Please find attached excerpts from the reports and articles cited in the petition*. Appendix A* consists of excerpts from numerous studies which indicate that the old hazardous waste site is likely contaminating the Oshawa Harbour.

Thank you for your consideration of this petition. I look forward to your reply.

Sincerely,

[Original signed by Krystyn Tully]

Krystyn Tully
Programs Director, Lake Ontario Keeper
225 Brunswick Avenue, Toronto, ON M5S 2M6
(Tel) 416.964.9223, ext. 242 - (Fax) 416.964.8239
KrystynTully@nextcity.com - Web: http://www.LakeOntarioKeeper.org/

DATED: October 31, 2002

*[attachments not available]


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Minister's Response: Environment Canada

March 3, 2003

Ms. Krystyn Tully
Programs Director
Lake Ontario Keeper
255 Brunswick Avenue
Toronto, Ontario
M5S 2M6

Dear Ms. Tully:

I am writing to provide Environment Canada's response to your petition No. 59 to the Auditor General and Commissioner of the Environment and Sustainable Development, concerning a historic waste disposal site located on property managed by the Oshawa Harbour Commission (OHC) and the related property development plans of the Commission.

The following information is provided in response to the specific questions posed to the Department or to questions that may, in part, relate to the responsibilities of Environment Canada.

Question 1: Has Environment Canada at any time initiated an investigation into possible Fisheries Act violations resulting (sic) contamination leaking from the former hazardous waste disposal site?

Environment Canada has not initiated any investigations under the Fisheries Act relating to the former waste site.

Question 2: If no, why has Environment Canada neglected to initiate such an investigation in light of twenty years of reports and studies which indicate the landfill is likely contaminating Lake Ontario? If yes, when was the investigation conducted, how was it carried out, and what were the findings?

Environment Canada has initiated various environmental studies in Oshawa Harbour beginning in the late 1970s, including a study at the landfill location. The Oshawa Harbour, like all harbours on urban/industrial watersheds, contains contaminant residues associated with harbour operations and industrial and municipal sources within the watershed. Due to sediment contamination in some of the navigational areas of the harbour, open water disposal of dredged materials was discontinued and a confined disposal facility for dredged material was developed in the early 1980s.

During this time, Environment Canada initiated sediment and water quality studies in the harbour and associated tributaries to identify possible sources of contaminants to the harbour. Results from these studies led to a 1983 study by Environment Canada to specifically consider the impact of the abandoned waste site on the marina and it included sampling of surface water, groundwater, soils and sediments (this report is cited in the Environment Canada report referenced in Appendix A of the petition). Although these studies described the general nature of contamination in the harbour they could not conclude that any ongoing contamination to the harbour was uniquely and conclusively sourced to the former landfill which would further warrant an investigation under the Fisheries Act. There was sufficient basis, however, for the Oshawa Harbour Commission (OHC) to pursue additional landfill characterization studies, including those referenced in the petition and those completed by the OHC in November 2002. The OHC is using the results from these efforts to assess the landfill property and evaluate land management, remediation, and development options.

Environment Canada has also conducted additional sediment characterization studies (1997-2000), in cooperation with the Central Lake Ontario Conservation Authority and the OHC as a basis for pollution prevention initiatives (report cited in Appendix A of the petition).

Question 3: Further to the comments made by Ms. Taylor, what is the official policy of the Government of Canada regarding the obligations of Harbour Commissions in ensuring property within Harbour Commission jurisdiction complies with environmental laws? Does a lack of notice from environmental authorities absolve Harbour Commissions from responsibility for investigating or addressing environmental concerns?

Environment Canada holds any party accountable to compliance under the legislation and regulations which it enforces - the department does not distinguish between Harbour Commissions and any other party, private or public.

Question 4: What is the status of the Oshawa Harbour and surrounding Harbour Commission lands with regards to the "Federal Contaminated Sites and Solid Waste Landfills Inventory"? Is there any federal legislation relating to contaminated sites on federal lands?

The Federal Contaminated Sites and Solid Waste Landfills Inventory is administered by the Treasury Board which, in conjunction with federal departments and Environment Canada, has established the policy requirements and responsibilities of federal custodial departments for reporting and monitoring. The Inventory applies to all departments within the meaning of section 2 of the Financial Administration Act and does not apply directly to Harbour Commissions. Further questions on the status of lands at Oshawa Harbour should be addressed to Transport Canada.

There is no general legislation relating to contaminated sites on federal lands, but the provisions of various federal statutes may be applicable. For instance, the provisions of the Fisheries Act administered by Environment Canada, pertaining to the prohibition of the deposit of deleterious substances in waters frequented by fish, would apply to such sites.

Question 11: What public notice requirements are the Oshawa Harbour Commission and related federal or provincial agencies such as Transport Canada, the Department of Fisheries and Oceans, the Canadian Environmental Assessment Agency, and Environment Canada required to follow in order to undertake this project? Requirements may include but are not limited to: providing notice of the plan to close the marina, providing notice of plans for addressing the old hazardous waste site, issuing copies of reports and plans for the site, encouraging public consultation, and providing notice of the intent to fill in portions of the Oshawa Harbour?

There are no public notice requirements that Environment Canada is required to follow related to the OHC undertaking; in terms of closing of the marina, waste site management and infilling.

Question 14: What accountability mechanisms (i.e., policies or legislation) are in place which would prevent the Oshawa Harbour Commission from undertaking its in-filling or capping project without complying with the procedures discussed in the previous section? More generally, which of these mechanisms ensures that the OHC cannot undertake any project with impunity which may have an adverse environmental impact?

The OHC is accountable for ensuring that any of its projects or operations are in compliance with the relevant provisions of the Fisheries Act or it could be prosecuted under the Act. The OHC is aware of its responsibilities in this regard.

I trust you will find this information useful.

Yours sincerely,

[Original signed by David Anderson, Minister of the Environment]

David Anderson, P.C., M.P

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Minister's Response: Fisheries and Oceans Canada

March 3, 2003

Ms. Krystyn Tully
Programs Director
Lake Ontario Keeper
225 Brunswick Avenue
Toronto, Ontario
M5S 2M6

Dear Ms. Tully:

This is in response to your correspondence received November 20, 2002, concerning the redevelopment of the Oshawa Marina, Environmental Petition #59.

It is stated in the petition that the former waste disposal site is adjacent to the Lake Ontario shoreline in Oshawa. The public right to navigation is a common law right. The Navigable Waters Protection Act authorizes the Minister to permit construction of works that may interfere with navigation. In recognition of the public right to navigate, the mission of the Navigable Waters Protection Program is to ensure the protection and safety of marine navigation in Canada's navigable waterways. The Navigable Waters Protection Program is a regulatory program, which relies on a range of permits and orders to fulfill its mission. The Program's activities include reviewing and permitting works on navigable waterways, authorizing repairs to existing works, and managing obstacles to navigation. The program also exercises the Receiver of Wreck function throughout Canada.

By regulating the placement of structures in, on, over, under through or across any navigable waters, the Navigable Waters Protection Act enables the Department to protect navigation in Canada's waterways for all Canadians. This being the case, it would appear that the Act does apply in the current situation identified in your petition since the work will be placed in navigable waters.

In response to your specific questions concerning the Fisheries Act and the Navigable Waters Protection Act, I have the following comments to offer.

In Question 5 of your petition, you ask if a Fisheries Act permit has been applied for or secured for this project. To date, Fisheries and Oceans Canada is aware of some planned activities in the area of the Oshawa Harbour, but the Department has not received an application under the Fisheries Act for a project from the Oshawa Harbour Commission; nor has the Department issued any approvals for works by the Oshawa Harbour Commission.

In Question 6 of your petition, you ask if there has been any permit applied for or secured for this project under the Navigable Waters Protection Act. The answer to this is that no permit has been applied for or secured for this project at this time. The Department has advised the proponent that they must apply for the necessary approvals under the Act.

Question 7 deals with the submission of a project description or any other relevant document. As a responsible authority under the Canadian Environmental Assessment Act, the Navigable Waters Protection Program has not received any project description at this time. You should be aware that the requirement for such information exists only if a formal approval under the Navigable Waters Protection Act triggers this requirement.

Question 11 addresses public notice requirements. Under the Navigable Waters Protection Act, when a local authority, company or person proposes to construct a work in navigable waters, public notice is required pursuant to section 9 of the Act.

Please rest assured that the Harbour Commission has been advised of the requirement to apply under the Navigable Waters Protection Act.

I want to thank you for your interest and concern in this matter.

Yours truly,

[Original signed by Robert G. Thibault, Minister of Fisheries and Oceans]

Robert G. Thibault

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Minister's Response: Transport Canada

March 17, 2003

Ms. Krystyn Tully
Programs Director
Lake Ontario Keeper
245 Queen's Quay West
Toronto, Ontario
M5J 2K9

Dear Ms. Tully:

I am writing in response to your letter dated October 31, 2002 concerning the Oshawa Harbour Commission (OHC) - Lake Ontario Keeper Environmental Petition No. 59. Your petition has been carefully reviewed in relation to the environmental assessment responsibilities of the department and the OHC. The following information is provided in response to the specific questions posed to Transport Canada (TC) or to questions that may, in part, be related to the responsibilities of TC.

Question 3: Further to the comments made by Ms. Taylor, what is the official policy of the Government of Canada regarding the obligations of Harbour Commissions in ensuring property within Harbour Commission jurisdiction complies with environmental laws? Does lack of notice from environmental authorities absolve Harbour Commissions from responsibility for investigating or addressing environmental concerns?

The OHC is responsible for complying with applicable environmental laws. Environment Canada holds all parties accountable to compliance.

Question 4: What is the status of the Oshawa Harbour and surrounding Harbour Commission lands with regards to the "Federal Contaminated Sites and Solid Waste Landfills Inventory?" Is there any federal legislation relating to contaminated sites on federal lands?

The lands and harbour for which the Harbour Commission has responsibility are not part of the Federal Contaminated Sites and Solid Waste Landfills Inventory. There is no specific federal legislation relating to contaminated sites on federal lands. The Fisheries Act is often applicable.

Questions 5-7: Has a Fisheries Act permit been applied for or secured for this project? Has a Navigable Waters Protection Act permit been applied for or secured for this project? Has a Project Description or any other document pertaining to redevelopment, remediation, or other in-filling, capping, or dredging activities at the Oshawa Harbour been submitted to the Canadian Environmental Assessment Agency (CEAA) or any other Responsible Authority under CEAA?

The Harbour Commission asked Marshall Macklin Monaghan to analyze the current impact of the dump on the environment. The report was received in November 2002, and the Commission resolved to follow the recommended course of action. Currently the port engineer is working with Marshall Macklin Monaghan on the engineering and design to implement the recommendation. When that documentation is prepared it is the intention of the Commission to then apply for all necessary permits and approvals. Presently, no documents have been filed with the Canadian Environmental Assessment Agency.

Question 8: Does the Canadian Environmental Assessment Act apply to Harbour Commissions?

Subsection 5(1) of the Canadian Environmental Assessment Act (CEAA) states that a project must be assessed before a federal authority exercises one of several powers described in the subsection. There must be three elements for CEAA to apply: a project (as defined by the Act), a federal authority (as defined by the Act) and a "trigger" (one of the powers to be exercised by the federal authority). Section 2 of the CEAA explicitly excludes a harbour commission from the definition of a federal authority. Consequently, the CEAA does not apply to a harbour commission. The CEAA has a provision in paragraph 59(k) that would allow the making of regulations applicable to how harbour commissions conduct an environmental assessment. No such regulations were made for harbour commissions. This does not preclude this initiative from being triggered in the future under the CEAA should a federal authority become involved (i.e. through issuing funding, permits, etc). TC has no responsibilities as a federal authority under CEAA with respect to this initiative.

Question 9: If no permits have been secured and no project description been submitted for environmental assessment, by what authority has TC authorized the project? What policies or legislation allow TC to approve the staged plan prior to the development of an appropriate environmental plan?

Generally, TC is not required to authorize projects proposed by harbour commissions. TC could be involved in the approval process for certain projects, in accordance with the Harbour Commissions Act, for example, projects where the approval of the Governor in Council is required for a by-law (section 17), borrowing (section 18), or an expropriation (section 23).

Question 10: Is there a project description or report? If so, could Lake Ontario Keeper (LOK) be given a copy of such reports?

The Harbour Commission did put forward a project plan in May 2002, to convert Port Oshawa Marina from a full service marina to a day use marina only by filling in two of the three basins, creating parkland and a parking area for the improved public launch ramp. A press release was issued on May 21, 2002 with respect to this plan. As indicated in answer 5, the planning process is still ongoing. For more information about the project, please contact the OHC.

Question 11: What public notice requirements are the OHC and related federal or provincial agencies such as TC required to follow in order to undertake this project?

Except perhaps for the requirement, in subsection 18(2) of the Harbour Commissions Act, to serve on the clerk of each municipality adjoining the harbour for which a harbour commission is established, a by-law proposed for submission to the Governor in Council, there are no public notice requirements under the Harbour Commissions Act. The harbour commission did however, give public notice of the project in a press release dated May 21, 2002. TC has no role in this project and therefore has no related public notice requirements.

Question 12: LOK requests that a federal Environmental Assessment be conducted and that the process be - at minimum - a Comprehensive Study. If it is determined that the CEAA does not apply to the OHC, are TC, the OHC, or any other project proponent(s) prepared to follow the spirit of the CEAA?

CEAA does not apply to harbour commissions, and TC has no authority to impose CEAA requirements on the OHC. TC is, however, committed to meeting all legal obligations respecting environmental issues, and expects the OHC to do the same.

Questions 13-14: In light of the advanced nature of the OHC's proposal, LOK requests that the Ministries responsible for issuing project permits formally advise the OHC of its legal responsibilities and undertake diligent monitoring to ensure that these responsibilities are fulfilled and that LOK receive a copy of documents distributed for these purposes. What accountability mechanisms are in place, which would prevent the OHC from undertaking its in-filling project without complying with the procedures discussed in the previous section?

Enforcement of an Act that requires a project permit would generally be part of the mandate of the department responsible for the Act. For example, if the Fisheries Act was effected, the Department of Environment would be responsible for enforcing the Act. TC is not such a department in this matter.

Question 15: Is the OHC an agent of the federal government, acting in a guardian capacity on behalf of the federal government? Or, has the federal government relinquished its jurisdiction over the Oshawa Harbour to the OHC, a non-government entity?

While the Harbour Commissions Act does not expressly declare harbour commissions to be agents of the Crown, case law has in the past treated them as agents. Each case, however, would have to be determined on its own merits.

Question 16: Does the OHC have an obligation to protect public rights to the Oshawa Harbour, including its waters and fisheries? If so, what policies and accountability mechanisms exist to ensure the OHC protects these rights?

The OHC has responsibility for management and operation of the harbour according to the Harbour Commissions Act, as well as an obligation to meet the requirements of other applicable legislation, such as the Fisheries Act and Navigable Waters Protection Act, and is subject to enforcement mechanisms under those Acts.

Thank you for bringing these matters to my attention. I trust that the foregoing has clarified TC's position.

Yours sincerely,

[Original signed by David M. Collenette, Minister of Transport]

Hon. David M. Collenette, P.C., M.P.