Factual Record Montreal Technoparc Submission (SEM-03-005) Prepared pursuant to Article 15 of the North American Agreement on Environmental Cooperation March 2008 Publicly released on 23 June 2008 For more information about this or other publications from the CEC, contact: Commission for Environmental Cooperation of North America 393, rue St-Jacques Ouest, bureau 200 Montréal (Québec) Canada H2Y 1N9 Tel.: (514) 350-4300 Fax: (514) 350-4314 E-mail: [email protected] http://www.cec.org ISBN: 978-2-89635-088-9 © Commission for Environmental Cooperation of North America, 2008 ALL RIGHTS RESERVED. Legal Deposit - Bibliothèque et Archives nationales du Québec, 2008 Legal Deposit - Bibliothèque et Archives Canada, 2008 Disponible en français – ISBN: 978-2-89635-086-5 Disponible en español – ISBN: 978-2-89635-087-2 This publication was prepared by the Secretariat of the Commission for Environmental Cooperation of North America (CEC). The views con- tained herein do not necessarily reflect the views of the governments of Canada, Mexico, or the United States of America. PROFILE In North America, we share a rich environmental heritage that includes air, oceans and rivers, mountains and forests. Together, these elements form the basis of a complex network of ecosystems that sustains our livelihoods and well-being. If these ecosystems are to continue to be a source of life and prosperity, they must be protected. Doing so is a responsibility shared by Canada, Mexico, and the United States. The Commission for Environmental Cooperation of North Amer- ica (CEC) is an international organization created by Canada, Mexico, and the United States under the North American Agreement on Envi- ronmental Cooperation (NAAEC) to address regional environmental concerns, help prevent potential trade and environmental conflicts, and promote the effective enforcement of environmental law. The Agree- ment complements the environmental provisions of the North Ameri- can Free Trade Agreement (NAFTA). The CEC accomplishes its work through the combined efforts of its three principal components: the Council, the Secretariat and the Joint Public Advisory Committee (JPAC). The Council is the governing body of the CEC and is composed of the highest-level environmental authori- ties from each of the three countries. The Secretariat implements the annual work program and provides administrative, technical and oper- ational support to the Council. The Joint Public Advisory Committee is composed of 15 citizens, five from each of the three countries, and advises the Council on any matter within the scope of the Agreement. MISSION The CEC facilitates cooperation and public participation to foster conservation, protection and enhancement of the North American envi- ronment for the benefit of present and future generations, in the context of increasing economic, trade and social links among Canada, Mexico and the United States. VII VIII FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY SERIES Produced by the CEC, the North American Environmental Law and Policy series presents some of the most salient recent trends and developments in environmental law and policy in Canada, Mexico and the United States, including official documents related to the novel citi- zen submission procedure empowering individuals from the NAFTA countries to allege that a Party to the agreement is failing to effectively enforce its environmental laws. Factual Record Montreal Technoparc Submission (SEM-03-005) Prepared pursuant to Article 15 of the North American Agreement on Environmental Cooperation March 2008 Publicly released on 23 June 2008 Table of Contents Acronyms, Abbreviations, and Definitions . 9 1. Executive Summary . 13 1.1 Division of Ownership of the Montreal Technoparc Sector . 14 1.2 Characteristics and Fate of Contamination in the Technoparc Sector . 16 1.3 Facts surrounding Environment Canada’s inspections, before and after the issuance of a warning . 17 1.4 Facts surrounding Environment Canada’s Investigation and Ecotoxicological Study . 18 1.5 Compliance Promotion after Termination of Environment Canada’s Investigation . 19 2. Summary of the Submission . 21 3. Summary of Canada’s Response . 23 4. Scope of the Factual Record . 31 5. Information Gathering Process . 32 6. Meaning and Scope of Section 36(3) of the Fisheries Act . 34 6.1 Introduction . 34 6.2 Responses to alleged violations of section 36(3) of the Fisheries Act. 34 6.2.1 Requests for Information and Ministerial Directives . 35 3 4 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION 6.2.2 Prosecution . 35 6.2.3 Defences against charges under section 36(3) . 37 6.2.3.1 Due Diligence . 37 6.2.3.2 Defences Based on Actions of the Regulator . 41 6.2.4 Court Orders upon Conviction . 43 6.2.5 Injunctions . 44 6.2.6 Civil Suits to Recover Remediation Costs . 44 7. Enforcement and Compliance Promotion Policies for Section 36(3) of the Fisheries Act. 44 7.1 Fisheries Act Habitat Protection and Pollution Prevention Provisions Compliance and Enforcement Policy . 45 7.2 Decision to Prosecute . 49 7.3 Enforcement of Section 36(3) of the Fisheries Act and Compliance Promotion Where Federal Interests are at Stake . 54 8. Information obtained by the Secretariat concerning enforcement of section 36(3) of the Fisheries Act in relation to alleged viola- tions of this provision in the Montreal Technoparc sector . 57 8.1 Background. 58 8.2 Division of Ownership of Technoparc Sector and its Relevance to Enforcement Efforts. 60 8.2.1 Canada-Montreal Sale . 63 8.2.2 Québec-Montreal Sale . 67 8.2.3 CN Site . 69 TABLE OF CONTENTS 5 8.3 Characteristics and Fate of Contamination in Montreal Technoparc Sector . 75 8.3.1 Contaminant Sources and Pathways. 76 8.3.1.1 LNAPLs . 76 8.3.1.2 Groundwater . 92 8.3.2 Setting Priorities Based on Degree of Harm to the Environment . 100 8.3.2.1 Contaminated Sites Management . 100 8.3.2.2 Cleanup of the St. Lawrence River . 103 8.4 Facts surrounding Environment Canada’s inspections, before and after the issuance of a warning in 1998 . 107 8.4.1 Facts Preceding the Warning . 107 8.4.2 Issuance of a Warning to City of Montreal. 111 8.4.3 Facts Occurring After the Warning . 117 8.5 Facts surrounding Environment Canada’s 2002-2003 investigation in response to a complaint from members of the public . 122 8.5.1 Environment Canada’s Investigation. 122 8.5.2 2002 Ecotoxicological Study . 124 8.5.3 Investigation Report . 127 8.6 Compliance promotion efforts following the decision by Environment Canada not to seek charges . 132 8.7 Information on Environment Canada’s actions and technical advice and their relevance to enforcement efforts in the Montreal Technoparc sector . 141 9. Closing Note. 144 6 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION Figures Figure 1 Aerial Photo of Pointe-Saint-Charles, 1930 . 15 Figure 2 Changes in shoreline, 1850-2005 . 58 Figure 3 Current cadastral boundaries . 62 Figure 4 Transport, Infrastructure and Communities portfolio. 71 Figure 5 Aerial view (towards Technoparc and St. Lawrence River) of former CN shops in Pointe-Saint-Charles. 74 Figure 6 Cross-section of site between CN’s Butler Spur and St. Lawrence River . 79 Figure 7 Extent of diesel plumes and locations of wells on CN property along Butler Spur (2000) . 83 Figure 8 Distribution of LNAPLs on the Technoparc site (1999-2000). 84 Figure 9 Groundwater sampling wells installed at the Technoparc site, 1999 . 93 Figure 10 Hydrocarbon discharges into the river, booms, and absorbent pads . 109 Figure 11 Groundwater intervention procedure . 118 Figure 12 Location of area under study (MCEBR) . 139 Tables Table 1 Contaminated sites in the La Prairie Basins area (St. Lawrence Centre, 1997) . 106 Appendices Appendix 1 Council Resolution No. 04-05 (20 August 2004). 147 TABLE OF CONTENTS 7 Appendix 2 Overall Plan to Develop a Factual Record (16 September 2004) . 151 Appendix 3 Request for Information (8 February 2005) . 159 Appendix 4 Request for Additional Information (30 January 2006) . 167 Appendix 5 Supplementary information requests (6 and 19 September 2006) and Canada’s responses (1 November 2006) . 171 Appendix 6 Notice of contamination (CN, 2005) . 179 Appendix 7 Chronology of investigation (Environment Canada, 2002-2003). 201 Appendix 8 Memorandum – Montreal Technoparc (Environment Canada, n.d.). 227 Appendix 9 Environment Canada, Investigation Report (April 2003) . 247 Appendix 10 Brief History of an Encroachment into a River (City of Montréal, September 2004) . 267 Appendix 11 Guy Martin’s résumé . 305 Attachments Attachment 1 Council Resolution 08-04 . 311 Attachment 2 Comments of Canada . 315 Acronyms, Abbreviations, and Definitions Acronyms and Abbreviations AMF Atelier de Montréal Facility (Montreal shops facility) CEC Commission for Environmental Cooperation CEMRS/ Montreal Centre of Excellence in Brownfields MCEBR Rehabilitation / Centre d’excellence de Montréal en réhabilitation de sites CN Canadian National Railways Company DFO Department of Fisheries and Oceans of Canada EC Environment Canada (Department of the Environment) EQA Environment Quality Act (Québec) FLM Federal Land Management (see chapter 110, below in Definitions) INECE International Network for Environmental Compliance and Enforcement JCCBI Jacques Cartier and Champlain Bridges Inc. LRM Legal Risk Management (see Deskbook, Part XII, below in Definitions) MDDEP Ministry of Sustainable Development, Environment, and Parks of Québec MEF Ministry of the Environment and Wildlife of Québec (see MDDEP) MENV Ministry of the Environment of Québec (see MDDEP) MENVIQ Ministry of the Environment of Québec (see MDDEP) MOE Ministry of the Environment of Ontario MUC Montréal Urban Community 9 10 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION NAAEC North American Agreement on Environmental Cooperation PAH polycyclic aromatic hydrocarbons PCB polychlorinated biphenyls PIZ See ZIP SLEI SNC-Lavalin Environment Inc. ZIP Priority Intervention Zone (see Regional Assessment, below in Definitions) Definitions chapter 110 Treasury Board of Canada, Administrative Policy Manual (December 1982), c. 110, “Real Property – General”, s.