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									                               Environmental Review
                               Tribunal

                                                        Case Nos.: 11-173/11-179/11-182

                          Belden CDT (Canada) Inc. v.
                      Director, Ministry of the Environment

      In the matter of appeals by Belden CDT (Canada) Inc. filed on September
      16, 2011, Nortel Networks Limited/ Corporation Nortel Networks Limitee
      filed on September 20, 2011, and 2058756 Ontario Limited filed on
      September 21, 2011 for a hearing before the Environmental Review
      Tribunal pursuant to section 140 of the Environmental Protection Act,
      R.S.O. 1990, c. E.19, as amended, with respect to Order No. 7326-
      8J4PU3 issued by the Director, Ministry of the Environment, on
      September 7, 2011 under sections 18, 196 and 197 of the Environmental
      Protection Act, regarding the discharge of contaminants impacting
      groundwater at the Site located at 700 Gardiners Road, Kingston, Ontario;

      In the matter of teleconferences held on December 14, 2011 at 10:00
      a.m.; January 12, 2012 at 10:00 a.m.; February 27, 2012 at 2:00 p.m.;
      March 8, 2012 at 1:30 p.m.; March 28, 2012 at 2:30 p.m.; and April 10,
      2012 at 10:00 a.m.; and

      In the matter of a request to amend the stay on consent.

Before:                    Paul Muldoon, Vice-Chair

Appearances:
Douglas Harrison      -    Counsel for the Appellant, Belden CDT (Canada) Inc.
and Ingrid Minott

Alexandria Pike       -    Counsel for the Appellant, Nortel Networks Limited/
                           Corporation Nortel Networks Limitee

Tamara Farber         -    Counsel for the Appellant, 2058756 Ontario Limited
Paul McCulloch        -    Counsel for the Director, Ministry of the Environment



Dated this 30th day of April, 2012.
Environmental Review Tribunal Order:                                11-173/11-179/11-182
Belden CDT (Canada) Inc. v.
Director, Ministry of the Environment

                          Reasons for Decision

Background:

On September 7, 2011, Trevor Dagilis, Director, Ministry of the Environment (“MOE”),
issued Director’s order No. 7326-8J4PU3 to Nortel Technology Limited/ Corporation
Nortel Networks Limitee (“Nortel”), Belden CDT (Canada) Inc. and 2058756 Ontario
Limited concerning the impacts from contamination from volatile organic compounds
(“VOC”), including trichloroethylene (“TCE”), and methyl ethyl ketone (“MEK”) and other
contaminants in groundwater at 700 Gardiners Road, Kingston, Ontario (the “Site”).
According to the Director’s order, Nortel owned the Site from about May 1971 until
about February 1996. In 1996, Nortel sold the Site to Belden CDT (Canada) Inc. The
Site was subsequently purchased by 2058756 Ontario Limited, which is the current
registered owner of the Site.
From 1971 to about 1993, Nortel produced cable for the telecommunication industry at
the Site. The manufacturing process carried out at the Site included the use of VOCs,
including MEK. Groundwater contamination was identified in 1987 when two
underground storage tanks which had contained waste oil and diesel fuel were found. It
was discovered that the fractured bedrock in the area of the tanks was contaminated
with a dense non-aqueous phase liquid (“DNAPL”) later identified as primarily 1,1,1
Trichloroethane. Additional tanks were also found at the Site, at least one of which was
used to store MEK. In 1996, concentrations of TCE were found in the area of the
former MEK tank. The MOE received monitoring and remediation reports related to the
Site from 1995 to 2009.
On September 16, 2011, Belden CDT (Canada) Inc. filed a notice of appeal with the
Environmental Review Tribunal (the “Tribunal”) with respect to the Director’s order. On
September 20, 2011, Nortel filed a notice of appeal and on September 21, 2011,
2058756 Ontario Limited filed a notice of appeal with the Tribunal. In the notice of
appeal filed by Alexandria Pike, Counsel for Nortel, a request on behalf of all orderees
was made for a stay in this proceeding and a teleconference to hear the stay request
was scheduled for October 7, 2011 at 11:00 a.m.
In its order dated November 16, 2011, the Tribunal granted a stay in this proceeding.
The stay on most items was granted until 30 days after the receipt of the decision of the
Ontario Superior Court of Justice with respect to the September 2011 motion regarding
environmental matters in the Companies’ Creditors Arrangement Act (“CCAA”)
proceedings involving Nortel.


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Environmental Review Tribunal Order:                                               11-173/11-179/11-182
Belden CDT (Canada) Inc. v.
Director, Ministry of the Environment

The Tribunal held teleconferences on December 14, 2011 at 10:00 a.m.; January 12,
2012 at 10:00 a.m.; February 27, 2012 at 2:00 p.m.; March 8, 2012 at 1:30 p.m.; March
28, 2012 at 2:30 p.m.; and April 10, 2012 at 10:00 a.m. During the teleconference on
April 10, 2012, the parties informed the Tribunal that they have agreed to extend the
stay in this proceeding.

Discussion, analysis and findings:
During a number of the teleconferences, the parties updated the Tribunal on the status
of a Court decision that would have direct implications for the proceeding. The Tribunal
was informed on the March 28, 2012 teleconference that the Court decision has been
issued: Nortel Networks Corporation, (Re) 2012, ONSC 1213 (CanLII). The decision
stays the Tribunal’s proceedings with respect to Nortel, but not with respect to the other
orderees named in the Director’s Order. The parties then wanted some time to discuss
the implications of the Court decision and how to address the existing stay in this matter
with respect to the other orderees in the Director’s order. During the April 10, 2012
teleconference the Parties agreed, in principle, to the extension of a stay in this matter
with respect to the orderees, except Nortel. The parties advised that they wanted some
time to discuss specific wording of the stay extension and then inform the Tribunal.

On April 10, 2012, Mr. McCulloch wrote to the Tribunal with the agreed upon
wording, which is:

      1. Items Nos. 1 to 5 and 10 to 14 of Director’s Order No. 7326-8J4PU3 are stayed until
         the disposition of the hearing in this matter or until the Tribunal orders otherwise.
      2. The issuance of the stay is without prejudice to the Ministry of the Environment
         requesting that the stay be lifted or the terms of the stay altered, by motion to the
         Tribunal, if it is of the opinion that such action is necessary for the purposes of the
         Environmental Protection Act or necessary to protect the public interest; and
      3. Upon termination or lifting of this stay, and subject to the appeal rights of the parties,
         reasonable timeframes for satisfaction of the Order will be determined in consultation
         with all Parties and considering all relevant factors.


Ms. Pike wrote to the Tribunal on April 12, 2012 and noted that the proposed stay does
not apply to Nortel. She also suggested a minor wording change in order to clarify a
term. However, the Tribunal did not find it necessary to change the agreed upon
wording at this time.
The Tribunal agrees that the stay should be amended on consent. The parties also
agreed to schedule a teleconference to provide an update to the Tribunal with respect to
discussion in this matter on August 12, 2012.


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Environmental Review Tribunal Order:                                 11-173/11-179/11-182
Belden CDT (Canada) Inc. v.
Director, Ministry of the Environment



                                        Order
The Tribunal orders that the stay granted in the Tribunal’s order dated November 16,
2011 be amended as follows:


   1. Items Nos. 1 to 5 and 10 to 14 of Director’s order No. 7326-8J4PU3 are stayed
      until the disposition of the hearing in this matter or until the Tribunal orders
      otherwise;

   2. The issuance of the stay is without prejudice to the Ministry of the Environment
      requesting that the stay be lifted or the terms of the stay altered, by motion to
      the Tribunal, if it is of the opinion that such action is necessary for the
      purposes of the Environmental Protection Act or necessary to protect the
      public interest;

   3. Upon termination or lifting of this stay, and subject to the appeal rights of the
      parties, reasonable timeframes for satisfaction of the order will be determined
      in consultation with all parties and considering all relevant factors

A status teleconference shall be held on August 9, 2012 at 10:00 a.m. The Case
Coordinator will provide the parties with the call-in information for the status
teleconference.




                                                     Request to Amend the Stay Granted




                                                                Paul Muldoon, Vice-Chair




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