North American Environmental Law and Policy

Secretariat of the Commission 

for Environmental Cooperation

393, rue St-Jacques Ouest

Bureau 200

Montréal (Québec)

Canada H2Y 1N9

info@cec.org

www.cec.org
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: info@cec.org

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 contained 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 America (CEC) is an international organization created by Canada, Mexico,

and the United States under the North American Agreement on Environmental Cooperation (NAAEC) to address regional environmental

concerns, help prevent potential trade and environmental conflicts, and

promote the effective enforcement of environmental law. The Agreement complements the environmental provisions of the North American 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 authorities from each of the three countries. The Secretariat implements the

annual work program and provides administrative, technical and operational 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 environment 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
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 citizen submission procedure empowering individuals from the NAFTA

countries to allege that a Party to the agreement is failing to effectively

enforce its environmental laws.

VIII FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
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
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 violations 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

4 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
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

TABLE OF CONTENTS 5
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

6 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
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

TABLE OF CONTENTS 7

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
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. 2, “Federal

Land Management (FLM) Principle”

charge period 1995-1997 (see Deloro)

Code Code of Environmental Stewardship

(Canada, 1992)

Compliance and Compliance and Enforcement Policy for the

Enforcement Policy Habitat Protection and Pollution Prevention

Provisions of the Fisheries Act

(Environment Canada, 2001)

Decision to Prosecute Deskbook, Part V, “Proceedings at Trial

and on Appeal,” c. 15, “The Decision to

Prosecute”

Deloro R. v. Ontario (Ministry of the Environment),

[2001] O.J. No. 2581 (Ont. Ct. J.)

Deskbook Canada, The Federal Prosecution Service

Deskbook (Ottawa, Justice Canada, 2005)

Foratek Report Foratek International Inc., Étude des sites de

disposition de déchets solides sur les terres

fédérales au Québec (Study of solid waste

disposal sites on federal land in Québec),

(Final Report – Phase II), presented to

Environment Canada, Québec Region,

report no. 611, Project no. FFG 83027

(March 1984)

10 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
GERLED Québec, Inventaire des lieux d’élimination de

résidus industriels GERLED – Évolution depuis

1983 et état actuel (GERLED index of industrial waste disposal sites – Trends since 1983

and status) (Québec: Les Publications du

Québec, 1998)

Regional Assessment Saint Lawrence Centre, Regional Assessment –

La Prairie Basins (Lachine Rapids, Greater and

Lesser La Prairie Basins), Priority Intervention

Zones 7 and 8 (March 1997)

Revi-sols program Urban Contaminated Sites Rehabilitation

Program

Secretariat Secretariat of the CEC

SLEI Report SNC-Lavalin Environnement inc., Projet

d’interception et de récupération des phases

flottantes d’hydrocarbures, Technoparc, Montréal

(LNAPL containment and recovery project,

Technoparc, Montreal) (Final Report – March

2002), Vol. 2 of 3, Appendix A – Site History

ACRONYMS, ABBREVIATIONS, AND DEFINITIONS 11

1. Executive Summary

Articles 14 and 15 of the North American Agreement on Environmental Cooperation (NAAEC) establish a process allowing residents of

Canada, Mexico, and the United States to file submissions containing

allegations to the effect that a Party to the NAAEC (Canada, Mexico or

the United States) is failing to effectively enforce its environmental laws.

Under the NAAEC, this process may lead to the publication of a factual

record. The Secretariat of the North American Commission for Environmental Cooperation (CEC) (hereinafter, the “Secretariat”) administers

the process.

On 14 August 2003, Waterkeeper Alliance, Lake Ontario Waterkeeper, Société pour Vaincre la Pollution, Environmental Bureau of

Investigation, and Upper St. Lawrence Riverkeeper/Save the River!

filed a submission with the Secretariat pursuant to NAAEC Article 14.

They allege that Canada is failing to effectively enforce section 36(3) of

the Fisheries Act in relation to the alleged deposit of polychlorinated

biphenyls (PCB), polycyclic aromatic hydrocarbons (PAH), and other

pollutants into the St. Lawrence River from the Montreal Technoparc

site, formerly a household and industrial waste disposal site now owned

by the City of Montréal. Under section 36(3), it is prohibited to deposit a

deleterious substance of any type into water frequented by fish or in any

place under any conditions where the deleterious substance or any other

deleterious substance that results from the deposit of the deleterious

substance may enter any such water, except as authorized by regulation.

On 20 August 2004, by means of Resolution no. 04-05, the CEC

Council instructed the Secretariat to prepare a factual record on the

following points raised in the submission:

• information on the division of ownership of the Montreal Technoparc

sector and its relevance to enforcement efforts;

• characteristics and fate of the contamination in the Montreal Technoparc sector;

13
• results of the oil containment and pumping system(s) in the Montreal

Technoparc sector;

• facts surrounding Environment Canada’s inspections, before and

after the issuance of a warning in 1998;

• facts surrounding Environment Canada’s 2002-2003 investigation in

response to a request from members of the public;

• the ecotoxicological study carried out in 2002;

• compliance promotion efforts following the decision by Environment

Canada not to seek charges, and

• information on Environment Canada’s technical actions and advice

and their relevance to enforcement efforts in the Montreal Technoparc sector.

During preparation of the factual record, the Secretariat gathered

information in accordance with Council’s instructions. The following

subsections summarize the information contained in section 8 of the

factual record.

1.1 Division of Ownership of the Montreal Technoparc Sector

The Montreal Technoparc sector, located between the Champlain

and Victoria Bridges at Pointe-Saint-Charles, was the hub of Canada’s

industrialization. It is made up of lands that were built up on the bed of

the St. Lawrence River, beginning in the nineteenth century, through

backfilling with domestic and industrial waste as well as other materials. It is approximately 2 km long and 500 m wide; much of the area is not

included in the land register. As regards the unregistered lands, the

federal government claims that they form the western tip of the Port of

Montreal (federal property), while the Government of Québec claims

that they are still part of the riverbed, which belongs to the province (see

Figure 1).

14 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
Figure 1 Aerial Photo of Pointe-Saint-Charles, 1930

Source: SLEI Report.

For a century (1860–1960), rail activities were central to this area,

with the Canadian National Railway Company (CN) and its predecessors operating an immense railyard on the shore. Over time, the marshland along the shore was drained and then landfilled with garbage.

During the 1960s, new lands were created (through infilling) downhill

from (or “south” of, in accordance with local usage) the railyard, to

provide a parking lot for Expo 67. This area (now Technoparc) was later

used for a Transport Canada short-takeoff and landing airport. Since

Expo 67, the Bonaventure Expressway has run along what is now the

bank of the river, 500 m from the original shoreline.

By the late 1980s, government authorities knew that the lands

developed south of the railyard were contaminated with light, nonaqueous phase liquid hydrocarbons (LNAPL) (oil floating on top of the

groundwater), the federal and provincial governments having done

environmental studies in the area when they set up their respective

inventories of former landfill sites. At the time, despite the environmental risks posed by this contamination, federal and provincial authorities

decided that urgent action was not needed since the contamination did

not pose a high risk to human health: there were no nearby drinking

water wells, and the nearest drinking water intake was several dozen

kilometers downstream of the Victoria Bridge.

EXECUTIVE SUMMARY 15
In 1989, the federal government and the province transferred ownership of part of the area to the City of Montréal for the latter’s development of a high-technology park. Due to the uncertainty surrounding

ownership of the land, the two deeds of sale refer to the same lot numbers. The City of Montréal, in addition to accepting the environmental

risks and undertaking to hold the sellers harmless against those risks,

waived any and all claims against the other levels of government that

might arise subsequently from any defect of title. In exchange, the federal government received $1 and the province received $1 million, from

which the City could deduct up to $300,000 to pay for environmental

studies required by the Québec Ministry of the Environment. Under

Article 65 of Québec’s Environment Quality Act, Ministry approval is

required to do construction work on a former landfill site. To obtain this

approval, the City committed to take care of managing the LNAPLs and

to monitor groundwater quality at Technoparc.

Technoparc was subdivided into several dozen lots, several companies having moved in since 1991 (the City retained liability for the

pre-existing contamination). The federal Crown corporation VIA Rail

Canada has operated a rail car maintenance center on land owned by

CN, northwest of Technoparc, since 1987. A large portion of the CN

railyard is in the process of being reassigned to other uses. The federal

Crown corporation Jacques Cartier and Champlain Bridges Inc. (JCCBI)

owns part of the land between Technoparc and the Champlain Bridge

to the “west” (in accordance with local usage) and manages the

Bonaventure Expressway. A small portion of the bank south of the

expressway belongs to the Government of Québec. It is not known who

owns the upstream and downstream portions of the bank between the

Champlain and Victoria Bridges.

1.2 Characteristics and Fate of Contamination in the Technoparc

Sector

The layer of waste and backfill in the Technoparc sector is

4-12 meters deep. Environmental studies conducted in the area since

1990 have yielded additional information concerning the extent and volume of the underground plumes or “ponds” of diesel fuel floating in the

waste. It is estimated that the central portion of Technoparc contains

4-8 million liters of diesel fuel mixed with other substances, enough to

fill about three Olympic-size swimming pools. A broken underground

diesel line is apparently responsible for at least part of this contamination. The Technoparc contains an estimated 1-2 tons of PCBs. The diesel

fuel, acting as a solvent, has accelerated the release of PCBs contained in

the waste (e.g., old transformers) buried in this area.

16 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
Originally, effluents from the railyard were dumped directly onto

the shore. As the shoreline moved away, it became necessary to build

sewer pipes in order to channel CN’s effluents to the St. Lawrence. These

pipes were eventually sealed off. In 1997, CN installed a bioslurping system to skim the oil off the groundwater at the southern boundary of its

property, along the Butler Spur (running along the northern boundary

of Technoparc). According to CN, the groundwater from its property is

routed into the City of Montréal’s sewer system. In 1997, researchers

from the federal and provincial environment departments undertook

a study on PAHs and PCBs found in the effluent from the City of

Montréal’s water treatment plant. In 1999, they concluded that atmospheric deposition represented the principal source of PCBs in the

St. Lawrence River and that the PAHs in the treatment plant effluent

were different from those detected in the river’s surface water upstream

of the treatment plant. PAH and PCB concentrations in the St. Lawrence

opposite the Technoparc met applicable water quality guidelines. PAHs

and PCBs from the treatment plant outfall could be detected in the river

several kilometers downstream. In 2003, CN obtained federal and provincial funding for a pilot project to treat the groundwater on its property, which had high PAH concentrations.

The groundwater in the Technoparc sector is toxic to fish. In 2006,

a center set up by Canada, Québec, and the City of Montréal received

funding from Canada Economic Development to commission a study

designed to determine which chemical parameters cause the toxicity. In

addition, the researchers sought to determine whether the presence of

ammonia nitrogen, a parameter associated with leachate from landfill

sites, might be hiding other sources of toxicity, such as various metals.

The study is intended as the first phase in the implementation of a

groundwater treatment process that would reduce to a minimum the

harmful components in the groundwater before it is discharged into the

river or the City of Montréal sewer system.

1.3 Facts surrounding Environment Canada’s inspections, before

and after the issuance of a warning

In 1990, Dessau Inc., an environmental engineering firm, submitted a report to the City of Montréal in which it concluded that the

construction work and dynamic compaction required to develop

Technoparc would slightly extend and thin-out the layer of hydrocarbons in the waste horizon, and that this would accelerate the

biodegradation of the hydrocarbons. Also in 1990, during infrastructure

work on a part of the future Technoparc site, an employee noticed oil

leaking onto the shore. Environment Canada took temporary measures

EXECUTIVE SUMMARY 17
to recover hydrocarbons from the river at the point of discharge. During

the next six years, CN — a federal Crown corporation in the process of

being privatized — and the City of Montréal shared the cost of maintaining the hydrocarbon recovery equipment (floating walls or “booms”

and absorbent pads) and disposing of the oil that accumulated inside the

booms. The booms were removed each fall and reinstalled in the spring.

While they were in place, Environment Canada inspected them on a

regular basis. Under the Fisheries Act, if the prosecution proves all elements of an offence beyond a reasonable doubt, a defendant can avoid

conviction if it establishes on a balance of probabilities that it exercised

due diligence in attempting to avoid committing the offence.

In 1991, the Fisheries Act was amended to allow for proceeding by

way of indictment, which is not subject to the two year statute of limitations that applies to summary conviction offences. These amendments

did not apply to Fisheries Act violations that occurred before 1991. In

1997, CN started up a bioslurping system to skim diesel fuel off the

groundwater along the southern boundary of its property (see above)

and stopped helping to pay for the cost of pumping oil on the shore.

CN indicated that in its opinion, infrastructure development, dynamic

compaction, and building construction work carried out by the City of

Montreal and others on the former landfill could help to explain the

upwelling of hydrocarbons on the shore.

In 1998, Environment Canada issued a warning to the City of

Montréal because the City had stopped maintaining the booms and

pumping the hydrocarbons on the bank. In 1998, Environment Canada

engineers put forward a technical proposal for construction of a wall to

contain groundwater flowing toward the river from Technoparc. There

was no follow-up to this project at the time. The City resumed temporary

recovery operations. In 1999, after a “value analysis exercise” attended

by representatives of Environment Canada and the Québec Ministry of

the Environment, the City committed to developing a system to recover

oil (but not groundwater) flowing off its property toward the river along

the Bonaventure Expressway.

1.4 Facts surrounding Environment Canada’s Investigation and

Ecotoxicological Study

In November 2001, Environment Canada published a policy concerning, among other things, enforcement of section 36(3) of the Fisheries

Act, which gives the public a role in reporting apparent Fisheries Act violations. In April 2002, while the City’s consultant was completing an

additional assessment report and preliminary design study based on

18 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
clean-up objectives adopted pursuant to the 1999 value analysis exercise, Environment Canada received a complaint from environmental

groups who were concerned about the discharges along the shore. Following up on this complaint, Environment Canada opened an investigation under Fisheries Act section 36(3) and called into question the City’s

clean-up objective, saying that it would be advisable to determine

whether groundwater under Technoparc was harmful (toxic) to fish

in order to decide whether groundwater quality also needed to be

addressed. In November 2002, the City’s consultant submitted to the

City the results of an ecotoxicological study confirming that groundwater samples taken at Technoparc in the summer of 2002 were toxic.

The City of Montréal claimed to be willing to proceed with a

hydrocarbon and groundwater recovery project (a 1500-m underground

wall anchored in the bedrock along the southern boundary of its property), provided that all stakeholders in the area dealt with the contamination on their properties and contributed to funding the City’s project.

At the time, Environment Canada’s investigator was concerned that if

the City were to be served with an order from the Québec Ministry of the

Environment or a court (under the Fisheries Act, for example), its project

would no longer be eligible for funding under the Québec urban contaminated site remediation program, Revi-Sols.

In June 2002, the federal minister of the environment assured the

City of Montréal that his Department’s staff would urge the other stakeholders to cooperate. In 2003, CN obtained federal and provincial funding for a pilot project to treat groundwater on its property (see above).

Also in 2003, VIA Rail replaced in entirety its diesel fuel supply and diesel spill containment systems.

In April 2003, Environment Canada terminated its investigation,

concluding that it was impossible to lay charges against anyone under

section 36(3) of the Fisheries Actin relation to discharges of hydrocarbons

into the river opposite Technoparc, it being impossible to determine the

source and pathway of the contaminants.

1.5 Compliance Promotion after Termination of Environment

Canada’s Investigation

During the two years following the termination of Environment

Canada’s investigation (2003 and 2004), the City negotiated with provincial and federal authorities, seeking agreement on clean-up objectives

and the role of each of the area’s stakeholders in moving the file forward.

EXECUTIVE SUMMARY 19
The City and its environmental consultant asserted that Environment

Canada’s investigation had been inconclusive as to the identity of the

party or parties responsible for the discharges. Additional groundwater

samples were taken to better understand the contribution of contaminants from upstream (Technoparc, perpendicular to the bank) and from

the west (JCCBI property, contaminants migrating parallel to the river in

the riprap of the Bonaventure Expressway). In the summer of 2005, the

City announced that it had signed a contract for the installation of more

effective hydrocarbon recovery equipment than the booms, at the point

where the discharges had been observed near the Victoria Bridge. This

equipment was not designed to be part of a comprehensive solution.

In 2005, the province granted the City a special extension for

Technoparc (until 31 December 2008) to incur eligible expenses under

the Revi-Sols program. Also in 2005, Tecsult Inc. completed a study on

containment of contaminants under a mandate from JCCBI. The stakeholders in the Technoparc sector hoped that JCCBI’s involvement in the

file would make it possible to obtain funding under a federal contaminated sites action plan announced in 2004.

Tecsult made three points in its report. First, groundwater at both

the JCCBI-owned land (toxicity confirmed in 2003) and Technoparc

should be addressed within a single, comprehensive project, since the

contamination profile in both was similar, even though no LNAPLs had

been found on JCCBI property. A comprehensive approach would

ensure that no part of the bank was left “without coverage,” allowing

contaminated groundwater to continue to leak into the river.

Second, since JCCBI manages the Bonaventure Expressway, a

promising approach might be to build a groundwater containment wall

along the expressway corridor (along the bank rather than further

inland on City land). This would avoid having to spend several years

pumping hydrocarbons out of the river, a prospect that did not sit well

with the Société du Havre de Montréal, which was thinking of relocating

the expressway in order to restore public access to the waterfront.

Third, Tecsult emphasized the value of treating the groundwater

before discharging it into the City of Montréal sewer system. Tecsult

underscored the fact that the groundwater in the area met the City of

Montréal’s sewer discharge standards; that the immense volume of

water flowing through the City’s sewer system would dilute the effluent

coming from the area; and that overall, the amount of ammonia nitrogen

discharged to the river from the Technoparc sector is negligible. However, discharge of this toxic water without pre-treatment was likely to

20 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
meet with the disapproval of government authorities and the public,

since the City’s treatment plant is not designed to remove ammonia

nitrogen and only removes a portion of the metals present in the effluent.

Tecsult therefore proposed to build an on-site treatment system that

would convert the ammonia nitrogen into less-toxic nitrates and remove

trace metals. This recommendation was consistent with the recommendations of a new guideline published by Environment Canada in

advance of the adoption of a federal regulation for the release of ammonia dissolved in water found in wastewater effluents.

Since 2005, the Montreal Centre of Excellence in Brownfields Rehabilitation (with funding from Canada Economic Development, the provincial government, and the City of Montréal) has been working on a

project to identify and test innovative groundwater treatment technologies in the Technoparc sector. It is estimated that the cost of the system

that will eventually be installed is in the order of C$40-60 million. In

January 2006, the federal Liberal Party made a campaign promise to

invest C$25 million to clean up Technoparc. In its 2007 budget, the new

federal government announced the creation of an infrastructure program, Building Canada, whose purposes include co-financing largescale wastewater treatment projects and brownfields redevelopment.

2. Summary of the Submission

The Submitters (three Canadian and two US nongovernmental

organizations) allege that Canada is failing to effectively enforce section

36(3) of the Fisheries Act in connection with the alleged deposit of

polychlorinated biphenyls (PCBs), polycyclic aromatic hydrocarbons

(PAHs), and other pollutants into the St. Lawrence River from the

Montreal Technoparc site, formerly a household and industrial waste

disposal site which now belongs to the city of Montréal. Under section

36(3), it is prohibited to deposit a deleterious substance of any type in

water frequented by fish or in any place under any conditions where the

deleterious substance or any other deleterious substance that results

from the deposit of the deleterious substance may enter any such water,

except as authorized by regulation.

The Submitters assert that the Technoparc site was a domestic and

industrial waste dump site until it was turned into a parking lot for the

1967 International and Universal Exposition (hereinafter, “Expo 67”),

and then into an industrial park in 1988.1 The Submitters assert that the

city of Montréal has known since 1995, if not earlier, that the site is conSUMMARY OF THE SUBMISSION 21

1. Submission, p. 4.
taminated with PCBs and they maintain that the city is responsible for

deposits of deleterious substances from the site.2 The Submitters assert

that the measures taken by the city — installation of floating barriers or

“booms” (the word used by Canada in its response) to contain the

contamination — are ineffective. They provide the results of sampling

conducted from October 2000 to January 2002 indicating PCB concentrations up to 8.5 million times the Canadian Water Quality Guidelines for the

Protection of Aquatic Life at the point of discharge. Inside the booms, PCB

concentrations are 941,000 times the recommended value, while outside

the booms they are 820 times the recommended value.3 The Submitters

append to their submission a report prepared by a biologist in April 2002

concluding that PCBs, PAHs, and other pollutants are being deposited

into the St. Lawrence River from Montreal Technoparc in concentrations

well in excess of provincial, federal, and international guidelines.4 The

submission contains a detailed description of the threats posed by PCBs

to aquatic life and human health.5 The Submitters assert that PCBs are

“highly toxic, persistent and bioaccumulative” and that “Environment

Canada identifies PCBs as a persistent toxic substance that is ’too dangerous to the ecosystem and to humans to permit their release in any

quantity.’“6

The Submitters assert that after receiving a brief describing the

alleged deposits, Environment Canada began an investigation in April

2002 of Montreal Technoparc under the Fisheries Act.7 The Submitters

state that in April 2003 Environment Canada sent them a letter stating

that “the investigation was stopped because the source of the contamination could not be determined.”8 The Submitters maintain that their

ability to bring forward a private prosecution in relation to Montreal

Technoparc is in question.9 They assert that the booms and absorbent

pads used in an attempt to contain the alleged deposits are ineffective

and that deleterious substances continue to be discharged into the

river.10

The Submitters assert that the alleged failure to effectively enforce

the Fisheries Act has caused them harm and that further study of

22 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

2. Ibid.

3. Ibid., p. 6. According to the Submitters, the guideline was established at 0.001 g/L in

1987.

4. Submission, p. 7.

5. Ibid., pp. 7-11.

6. Ibid., pp. 7-8.

7. Ibid., p. 12.

8. Ibid.

9. Ibid., pp. 12-13.

10. Ibid., p. 13.
the issues raised in the submission would advance the goals of the

NAAEC.11They therefore request that the CEC prepare a factual record.

3. Summary of Canada’s Response

On 15 September 2003, the Secretariat found that the submission

met the criteria of NAAEC Article 14(1) and warranted a response from

Canada in light of the factors enumerated in section 14(2).12 Canada

responded to the submission on 14 November 2003.13 The response is

divided into three parts: 1) Enforcement of the Fisheries Act; 2) Description of the Sector Comprising the Technoparc Site; 3) Procedure

Followed by Environment Canada.14 In the introduction, Canada states:

The information provided in these two chapters forms the context for the

department’s actions described in chapter three. These actions related to

administrative procedure allow the department to ensure that fish and

their habitat are protected within the shortest time possible.15

1) Enforcement of the Fisheries Act

In the section titled “Enforcement of the Fisheries Act,” Canada

describes the responsibilities of Environment Canada in relation to

enforcement of section 36(3) of the Fisheries Act, discusses the penalties

applicable to the violation of the provisions of that section, and presents the compliance promotion and law enforcement programs implemented by Canada with a view to achieving the Department’s principal

objective: preventing the pollution of water frequented by fish through

compliance with the Fisheries Act.16

Canada explains that the Minister of the Environment is responsible for enforcement of the provisions of the Fisheries Actrelating to pollution prevention, which includes section 36(3).17 Canada asserts that

violations of section 36(3) are punishable on conviction by a fine and/or

SUMMARY OF CANADA’S RESPONSE 23

11. Ibid., pp. 14-15.

12. SEM-03-005 (Montreal Technoparc), Determination in accordance with Articles 14(1) and

(2) of the North American Agreement for Environmental Cooperation (15 September 2003).

13. Deposits of Deleterious Substances in the Saint Lawrence River Opposite the Technoparc

Site/Commission for Environmental Cooperation/Response to Submission SEM-03-005,

prepared by Environment Canada for the Government of Canada (November 2003)

(hereinafter, the “Response”).

14. Response, p. i.

15. Ibid., p. 1.

16. Ibid., pp. 2-4.

17. Ibid., p. 2.
imprisonment, and that separate offences are counted for each day during which a violation is committed or continued. Canada specifies that

proceedings under section 36(3) may be instituted by a public department or a private party.18

Canada asserts that Environment Canada’s compliance promotion

program involves many activities intended to promote compliance with

section 36(3), including education and information, consultation on

proposed regulations, development of guidelines, and provision of

technical advice on means of achieving compliance.19 As for the law

enforcement program, it includes two main activities, inspections and

investigations, with the objective of requiring compliance with the Act

through recourse to administrative and legal measures of law enforcement.20 In its response, Canada describes enforcement measures provided by the Fisheries Act in the case of a violation — an inspector’s

direction, a Minister’s order, an injunction, recovery of costs as the result

of prosecution, and a penalty imposed by the court on summary conviction — and specifies that the Fisheries Act provides for the particular situations in which each of these measures may be used.21

Canada states in its response: “In order to respect basic principals

[sic] of fairness, predictability and consistency, the department has

framed administration of the two approaches [compliance promotion

and law enforcement] in a policy on compliance and enforcement of the

Act.”22 Canada notes that under theCompliance and Enforcement Policy for

the Habitat Protection and Pollution Prevention Provisions of the Fisheries Act

(hereinafter, “Compliance and Enforcement Policy”), “[t]he department

also has the administrative option of issuing a warning as a law enforcement measure.”23 Canada explains that the Compliance and Enforcement Policy establishes three criteria for determining the appropriate

law enforcement measure in relation to a violation: the nature of the

violation, the effectiveness of the measure to oblige compliance by the

alleged violator or to deter re-offending, and consistency in enforcement.24 Canada states that “the measure chosen will be the measure that

24 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

18. Ibid.

19. Ibid., p. 3.

20. Ibid.

21. Ibid., p. 4.

22. Ibid., p. 3. See Environment Canada, Compliance and Enforcement Policy for the Habitat

Protection and Pollution Prevention Provisions of the Fisheries Act (November 2001),

online at Environment Canada <http://www.ec.gc.ca/ele-ale/462A94EB-05D4-

4299-93FE-5DBDA127C606/c_and_e_fisheries_act_e.pdf>.

23. Response, p. 4.

24. Ibid.
will secure compliance within the shortest time possible, or if the violation has already been corrected, the measure that will best serve to deter

a reoccurrence.” Canada adds:

In the light of the intended measure, the department has the responsibility

of taking that measure, of making a recommendation to ministers or making a recommendation to the Department of Justice. In the latter case, the

Department of Justice must also assess certain criteria before deciding to

begin judicial proceedings.25

2) Description of the Sector Comprising the Technoparc Site

Canada proceeds to describe the history, physical characteristics,

and title to the sector comprising the Technoparc site. Canada states that

between 1864 and 1888, the city of Montreal acquired land with a view

to establishing a dump at the south end of Ash Street in Pointe-SaintCharles, in an area situated on the banks of the St. Lawrence River in the

southeastern portion of the Island of Montreal between the Champlain

and Victoria Bridges.26 Canada states:

In 1925, noting the southern progression of the Pointe-Saint-Charles

dump, the Harbour Commission (Société du Port de Montréal) authorized

the city of Montréal to dump garbage on its swampy lands and to do so up

to the water limits.27

The response contains an aerial photo of the sector taken in 1930

with a projection of future lands that would be formed in the riverbed by

the garbage backfill.28 The response further indicates that in 1937, the

city sold a part of the site located at the south end of Ash Street to

Canadian National Railways (CN) for construction of a new railyard.29

Later, large-capacity aboveground storage tanks were installed there.30

Canada adds:

Built on the riverbed, the dump (in its post-1937 extension) continued to be

used for landfill until its closing in 1966. From four to 12 metres of household and industrial waste along with dry material had been dumped in the

area.31

SUMMARY OF CANADA’S RESPONSE 25

25. Ibid.

26. Ibid., p. 5.

27. Ibid.

28. Ibid. This photo is reproduced in the Executive Summary of this Factual Record.

29. Ibid., p. 6.

30. Ibid.

31. Ibid.
It is also stated in the response that the land now forming the

Technoparc was leveled and covered with a thin coat of gravel in 1966 to

serve as a parking area for Expo 67. Canada continues, “[a]t that point,

problems related to the production of gas by decomposing organic matter were encountered for the first time.”32 According to the response, it

was during this same period that the Bonaventure Expressway was built

along the southern edge of what is today the Technoparc site, “using

large quantities of external landfill dumped directly on the riverbed,

between the Victoria and Champlain Bridges.”33 Canada states that the

land was unused after Expo 67 until 1976, when the federal Department

of Transport decided to install a short-takeoff and landing (STOL) airport with a terminal, parking area and fuel storage tanks.34 The site was

abandoned again, around 1977, and the infrastructure was finally dismantled in 1991.35 According to the response, in 1984 VIA Rail built a

maintenance centre in the southwest part of the site that is now the

Technoparc.36 Canada adds that part of the site was used for storage of

granular material and as a snow dump during the winter of 1985.37

Concerning the physical characteristics of the site, the response

states that due to the variability of the materials making up the base,

groundwater moves slowly and at varying rates in the sector.38 The

response refers to site characterization studies performed between 1990

to 2002 by Environment Canada and different landowners in the sector.39 A report prepared in 1990 for Environment Canada and the Quebec Ministry of the Environment “shows that the soil and water of the

sector are contaminated by many substances, and some of them at a significant level.”40 According to the response, CN conducted its own studies and in 1996 installed a system for recovery of floating hydrocarbons

in the groundwater at the southern boundary of its land.41 In addition, a

study by SNC-Lavalin in 2002 for the city of Montréal:

confirmed the presence of a significant concentration of PAHs and PCBs in

some of the monitoring wells located near the banks of the Saint Lawrence

River. The SNC-Lavalin study also established the presence of PCBs in a

high number of the wells throughout the Technoparc site.42

26 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

32. Ibid.

33. Ibid.

34. Ibid.

35. Ibid.

36. Ibid.

37. Ibid.

38. Ibid.

39. Ibid., p. 7.

40. Ibid.

41. Ibid.

42. Ibid.
Canada asserts in its response that in the summer of 2002, the city

of Montréal conducted an ecotoxicological study with the participation

of Environment Canada. The study “concluded that an analysis of

underground water samples were harmful [sic] and represent a lethal

and sub-lethal effect on fish.”43

Concerning ownership of the site, the response states that the

Technoparc site has an area of 456,057 m2 and was sold to the city of

Montréal in 1989 by Her Majesty in right of Québec (Government of

Québec) and the Montreal Port Corporation (legal representative of Her

Majesty in right of Canada).44 The site consists of 30 separate lots, 24 of

which belong to the city.45 From 1989 to 1999, the city sold the other 6 lots

to Teleglobe Canada Inc. (1 lot), Bell Mobility Cellular Inc. (1 lot), Cité du

cinéma (MEL) Inc. (3 lots), and Société immobilière Parctech Inc. (1 lot).46

According to the response, the land immediately north of Technoparc is

used by CN as a railyard, while the land immediately south of the site

(towards the river), on which the Bonaventure Expressway is located,

belongs in part to the Quebec Ministry of the Environment and in part to

an unknown owner.47

Under “Deposits in the St. Lawrence River,” Canada asserts that at

the eastern end of the sector under study, “deposits in the river, characterized by a floating hydrocarbon phase,...are contaminated by PCBs,

among others. Booms are now in place to recover the contaminated oil

film to the extent possible.”48

3) Procedure Followed by Environment Canada

The response provides a description of measures taken by Environment Canada in relation to the Technoparc site since 1991. It begins:

Environment Canada is concerned about the deposits in the Saint Lawrence River between the Victoria and Champlain Bridges. Its main objective is protection of the environment. The department has acted and

continues to take action to resolve this problem.49

SUMMARY OF CANADA’S RESPONSE 27

43. Ibid.

44. Ibid.

45. Ibid., pp. 7-8.

46. Ibid., p. 8.

47. Ibid.

48. Ibid.

49. Ibid., p. 9.
Canada asserts that Environment Canada used law enforcement

and compliance promotion measures to solve the problem of deposits

into the river. Canada provides the following explanation:

One approach consists of promotion of the Fisheries Act by acting as a

technical adviser and the other approach is by law enforcement. The two

approaches are mutually inclusive in achieving the objective of protecting

the environment with the result that they reinforce each other.50

Under “Compliance promotion program,” Canada states as follows:

Since 1998, the scientific staff of Environment Canada’s compliance

promotion program has been increasingly concerned by deposits of

substances in the Saint Lawrence River bordering on the Bonaventure

Autoroute between the Victoria and Champlain Bridges.51

Canada explains that, in regard to compliance promotion, since

1998, Environment Canada has been in discussions with the Province of

Québec and, more recently, with the city of Montréal and the owners of

other sites in the contaminated sector with a view to finding a comprehensive solution to the problem.52 In 2002 the city proposed to build a

containment and recovery system for floating hydrocarbon phases at the

site.53 Canada asserts that Environment Canada expressed its concern

about the capacity of the system to contain dissolved-phase contamination in the groundwater.54 In summer 2002, Environment Canada

“participated in a toxicological study of a dissolved phase of the underground water to measure the harmful and lethal and sublethal effects

on fish.”55

As to law enforcement, Canada asserts that in August 1991, Environment Canada received information from a representative of the

Port of Montreal Corporation concerning an oil film on the St. Lawrence

River under the Victoria Bridge.56 According to Canada,

Environment Canada conducted an inspection and took an open water

sample. Since the source of the pollution was unknown, Environment

Canada incurred the cost of installing an oil containment system in the

28 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

50. Ibid.

51. Ibid.

52. Ibid., pp. 9-10.

53. Ibid., p. 9.

54. Ibid.

55. Ibid.

56. Ibid., p. 10.
river. Soon after, CN decided to take charge of the operation. Subsequently, CN and the city of Montréal agreed on cost sharing to maintain

booms at locations where deposits were observed and on recovery of

hydrocarbons. In 1996, CN withdrew its contribution from the operation

for the purpose of working on recovery of floating hydrocarbons on the

surface of underground water along the limits of its property.57

According to the response, in November 1998 Environment Canada sent a warning to the city of Montréal due to the “poor condition of

the booms and the cessation of oil pumping.”58 Canada maintains that

from October 1998 to August 2003, Environment Canada made twenty

visual inspections of the booms and on three occasions asked the city of

Montréal “to correct the situation.”59 It further maintains that Environment Canada makes regular inspections to ensure “that installed retaining and hydrocarbon recovery devices are operational.”60 Canada

recognizes that the booms and pumping of hydrocarbons are not a permanent solution and do not solve the overall problem.61

Canada asserts that further to a request in April 2002 from two of

the submitters, Environment Canada conducted an investigation for a

violation of section 36(3) of the Fisheries Act.62 According to Canada,

The investigation consisted of an exhaustive search of the different existing studies in the department on the soil and underground water contamination of the sector making up the Technoparc site. Information was also

collected on departmental actions regarding deposits in the river at that

location. As part of the investigation, consultations took place with

departmental personnel involved as technical advisers to various parties

in the sector to whom the deposits might be attributed. Finally, a search of

title documents was made in the Montréal land register of the land registry

office, and in documents of the Quebec Ministry of Natural Resources to

trace the history of the transfer of title documents and to identify current

title owners in the sector comprising the Technoparc.63

According to Canada, the information collected showed that the

different lands forming the study sector are contaminated by many pollutants resulting from diverse activities (household and industrial waste

disposal site, installation of petroleum product tanks and of liquid waste

SUMMARY OF CANADA’S RESPONSE 29

57. Ibid.

58. Ibid.

59. Ibid.

60. Ibid.

61. Ibid., p. 13.

62. Ibid., p. 10.

63. Ibid., p. 11.
lagoons, snow dumping, and dump for material of unknown origin).64

Canada continues by stating, “[w]hile the owners of the different lots

forming what was previously the dump are now known, there is not sufficient proof to attribute the fact that [sic] the contaminants deposited in

the river come directly from the Technoparc site, from one of the sites of

other owners or from all these sites.”65

In the section titled “Conclusion of the investigation,” Canada

specifies that since the Department failed to establish sufficient proof of

the offence covered by section 36(3) of the Fisheries Act, an overriding

condition for successful pursuit of legal proceedings, the department

decided to close the investigation.66 The response states that “[f]or these

reasons [and f]ollowing an assessment of the criteria of the enforcement

policy for the Fisheries Act67] the department decided not to continue its

investigation and instead to continue its efforts with the different parties

potentially responsible for the contamination in order to find a lasting

solution to this environmental problem.”68

A three-page document titled “Environment Canada Clarification

of Certain Statements by the Authors of Submission SEM-030-005”69 is

appended to Canada’s response. The clarifications provided deal with

the content of the Compliance and Enforcement Policy, the lack of information as to the source of the contamination in the deposits into the

river, the measures taken by Environment Canada further to a telephone

call from a citizen in January 2002 to report an oil spill from the

Technoparc site, the purpose of the criminal investigations, and the

impact of Environment Canada’s decision to close the investigation on

the Submitters’ ability to bring forward a private prosecution under the

Fisheries Act.70 As regards the Submitters’ assertion that “[t]he Montréal

Technoparc site is one of Quebec’s largest hazardous waste sites...,”71

Canada states as follows:

The Technoparc site is part of a sector that used to be a household and

industrial waste burial site. It has been the location of and the neighbour of

sites where many types of activities have also contributed to the contamination of the Technoparc soil and neighbouring land. By the nature of their

foundations, underground water [sic] moves according to a complex

30 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

64. Ibid.

65. Ibid., pp. 11-12.

66. Ibid., p. 12.

67. Ibid.

68. Ibid., pp. 12-13.

69. Ibid., p. 14.

70. Ibid., pp. 14-16.

71. Ibid., p. 14; Submission, p. 4.
hydrogeological system, with the result that information concerning the

source of substances deposited in the river does not exist.72

In the appendix to the response, Environment Canada states that

the Submitters allege that “it is the purpose of a criminal investigation to

establish the identity of the accused where the evidence of an offence

exists.”73 Environment Canada states:

The purpose of a criminal investigation of an infraction of strict responsibility, such as provided for in section 36(3) of the Fisheries Act, is to collect

sufficient evidence on each of the elements constituting an infraction,

and information surrounding the infraction, where there are reasonable

grounds for believing that an infraction has occurred. If the law enforcement measure being considered by the department is a criminal penalty

imposed by a court, the evidence is assessed by the Attorney General of

Canada who also considers the public interest in deciding whether to

begin legal proceedings.74

4. Scope of the Factual Record

On 19 April 2004, the Secretariat concluded that Canada had not

answered the principal questions raised in the submission concerning

the enforcement of section 36(3) in relation to the deposit from the

Technoparc site of deleterious substances into water frequented by

fish. Consequently, pursuant to NAAEC Article 15(1), the Secretariat

informed Council that the submission, in light of the Party’s response,

warranted development of a factual record.

On 20 August 2004, by Resolution no. 04-05 (Appendix 1), the

Council decided unanimously to:

INSTRUCT the Secretariat to prepare a factual record in accordance with

Article 15 of the NAAEC and the Guidelines for Submissions on Enforcement

Matters under Articles 14 and 15 of the North American Agreement on Environmental Cooperation in respect of the following items arising in the context of Submission SEM-03-005 with regard to alleged failure to effectively

enforce section 36(3) of the Fisheries Act:

• facts surrounding Environment Canada’s inspections, before and after,

the issuance of a warning in 1998;

• facts surrounding Environment Canada’s 2002-2003 investigation, in

response to a request from members of the public;

SCOPE OF THE FACTUAL RECORD 31

72. Response, p. 14.

73. Ibid., p. 15; Submission, p. 12.

74. Response, p. 15.
• characteristics and fate of the contamination of the Montreal Technoparc sector;

• results of the oil containment and pumping system(s) at the Montreal

Technoparc sector;

• the ecotoxicological study carried out in 2002;

• information on the division of ownership of the Montreal Technoparc

sector and its relevance to enforcement efforts;

• information on Environment Canada’s technical actions and advice

and its relevance to enforcement efforts at the Montreal Technoparc

sector; and

• compliance promotion efforts following the decision by Environment

Canada not to seek charges.

DIRECT the Secretariat to provide the Parties with its overall work plan

for gathering the relevant facts and to provide the Parties with the opportunity to comment on that plan; and

TO DIRECT the Secretariat to consider, in developing the factual record,

whether the Party concerned “is failing to effectively enforce its environmental law” since the entry into force of the NAAEC on 1 January 1994. In

considering such an alleged failure to effectively enforce, relevant facts

that existed prior to 1 January 1994, may be included in the factual record.

5. Information Gathering Process

To prepare the factual record, as prescribed by Council in Council

Resolution No. 04-05 (Appendix 1), the Secretariat developed a work

plan and provided it to the Parties for comment on 16 September 2004

(Appendix 2). The Secretariat received no comments on the work plan.

Pursuant to NAAEC Article 15(4), in preparing a factual record,

“the Secretariat shall consider any information furnished by a Party and

may consider any relevant technical, scientific or other information (a)

that is publicly available; (b) submitted by interested non-governmental

organizations or persons; (c) submitted by the Joint Public Advisory

Committee; or (d) developed by the Secretariat or by independent

experts.” On 8 February 2005, the Secretariat published a request for

information concerning the submission (Appendix 3) and sent a copy to

the Parties, the Submitters, the Joint Public Advisory Committee, and

the Government of Québec.

32 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
Québec responded to the request for information on 30 May 2005.

Canada provided its response on 18 August 2005.

On 8 November 2005, the Secretariat retained DDH Environnement Ltée to review the information provided by Canada and to deliver

to the Secretariat a report containing the following information: description of the environmental issues relating to Technoparc; measures available for achieving compliance with section 36(3) of the Fisheries Act;

analysis of actions taken to this end. DDH Environnement Ltée submitted its report to the Secretariat on 28 February 2006.

On 30 January 2006, the Secretariat sent Canada a request for additional information (Appendix 4). Canada responded to this request on

17 March 2006.

The Secretariat’s Legal Officer met with representatives of the

Environment Department (Service de l’environnement) of the city of

Montréal in their offices on 14 March 2006. In anticipation of this

meeting and subsequent to it, city employees sent the Secretariat a large

number of documents from the city’s file on Montreal Technoparc.

On 16 May 2006, the Secretariat’s Legal Officer sent a letter to the

Vice President, Environment of CN requesting a meeting as part of the

information gathering process for the factual record. The Secretariat

received no response to this letter. Moreover, the Secretariat did not

succeed in reaching CN’s environment division in Montréal. Its telephone number is confidential.

On 7 July 2006, the Secretariat’s Legal Officer visited the bank of

the St. Lawrence River adjacent to the Technoparc accompanied by a

representative of the Submitters, where she observed an oily substance

covering the ground and the rocks on the bank and a multicolored glint

on the water inside the booms. She also detected a strong odor of gasoline.

On 6 and 19 September 2006, the Secretariat sent Canada requests

for additional information. Canada responded to these requests on

1 November 2006 (Appendix 5). The Secretariat’s Legal Officer met

with Environment Canada’s Québec director of the Environmental Law

Enforcement Division (Division de l’application de la loi en environnement)

and a senior advisor at their Montreal offices on 3 November 2006. On

28 November 2006, the Secretariat sent Canada a set of questions in writing, and Canada responded on 8 January 2007 (see below, sections 8.5.3

and 8.7).

INFORMATION GATHERING PROCESS 33
The Secretariat retained the services of Guy Martin for help

in preparing the factual record (see CV, Appendix 11). Mr. Martin

was employed by Environment Canada for over thirty years, holding,

among others, the positions of Chief, Inspections and Investigations

Division, Environmental Protection Branch, Québec Region, Montreal

(1988-1995), and Chief, Inspections and Investigations Division, Environmental Enforcement Branch, Environment Canada Headquarters,

Gatineau (1996-2004).

6. Meaning and Scope of Section 36(3) of the Fisheries Act

6.1 Introduction

Under theConstitution Act, the Parliament has exclusive legislative

power regarding “Sea Coast and Inland Fisheries.”75 The Parliament

enacted the Fisheries Act in 1868, one year after Confederation.76 Section

36(3) is now contained in a part of the Fisheries Act entitled “Fish Habitat

Protection and Pollution Prevention.” Section 36(3) provides:

Subject to subsection (4), it is prohibited to deposit a deleterious substance

of any type in water frequented by fish or in any place under any conditions where the deleterious substance or any other deleterious substance

that results from the deposit of the deleterious substance may enter any

such water.

The type of prohibition found in section 36(3) has been part of the

Fisheries Act since its enactment in 1868.77This prohibition applies everywhere in Canada, on public and private land and to all types of activity,

whether carried out by individuals, businesses, provinces, municipalities, or the federal government.78 All deposits covered by section 36(3)

are illegal unless they are authorized by federal regulation.

6.2 Responses to alleged violations of section 36(3) of the Fisheries

Act

The Fisheries Act provides a range of responses to alleged violations of section 36(3), including requests for information and directions

34 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

75. Section 91(12) of the Constitution Act, 1867 (U.K.), 30 and 31 Vict., c. 3.

76. 31 Vict., 1868, c. 60.

77. 31 Vict., 1868, c. 60, s. 14; replaced by S.C. 1969-1970, c. 63, s. 3.

78. Section 3(2) of the Fisheries Act: “This Act is binding on Her Majesty in right of Canada

or a province.” See R. v. Canada (Department of National Defence) (1993), 125 N.S.R. (2d)

208 (N.S.C.A.).
from the Minister of Fisheries and Oceans (hereinafter, the “Minister”),

prosecutions, court orders upon conviction, injunctions, and civil suits

to recover remediation costs. These measures are described below.

The following information is relevant to a consideration of

whether Canada is failing to effectively enforce s. 36(3) of the Fisheries

Act in connection with alleged deposits of deleterious substances in

the Montreal Technoparc sector. The Secretariat expresses no opinion

concerning this information and provides no analysis thereof.

6.2.1 Requests for Information and Ministerial Directives

The Fisheries Act gives the Minister the power to request information in relation to any work or undertaking that results or is likely to

result in the deposit of a deleterious substance which constitutes a

violation of the Fisheries Act (s. 37(1)). Specifically, the Minister may

request information concerning the work or undertaking, the question

of whether the work or undertaking results or is likely to result in the

deposit of a deleterious substance, and the measures, if any, that would

mitigate the effects thereof. Based on the information obtained and the

arguments of the persons who provided it, the Minister may, with the

approval of the Governor in Council, require the modification of the

work or undertaking, restrict its operation, or direct its closing for a

specific period.

6.2.2 Prosecution

In the event of an alleged violation of section 36(3), another alternative is prosecution of the person responsible for the alleged violation.

The Crown must, however, be able to prove beyond a reasonable doubt

that a person deposited or permitted the deposit of a substance into

water frequented by fish or near such water.

The Fisheries Act specifies that a “deposit” occurs regardless of

whether the act is intentional or unintentional.79 “Water frequented by

fish” means “Canadian fisheries waters,” but water is not “water frequented by fish” for the purposes of the Fisheries Act if the defendant can

MEANING AND SCOPE OF SECTION 36(3) OF THE FISHERIES ACT 35

79. Section 40(5)(a) of the Fisheries Act.
prove that, at all times material to the proceedings, the water is not, has

not been, and is not likely to be frequented by fish.80

The courts have also established that if a substance is “deleterious”

in and of itself (e.g., an acutely lethal effluent), the Crown does not have

to prove that the deposit of such a substance into water frequented by

fish actually harmed fish or their habitat in order to obtain a conviction

under section 36(3).81 It only has to prove that the substance was deposited or that its deposit was authorized. In 2005, the Supreme Court of

Canada denied leave to the City of Kingston to appeal an Ontario Court

of Appeal decision affirming this principle in the case of a conviction for

violation of section 36(3) caused by leachate runoff from a former municipal landfill into the Cataraqui River in Kingston:

Earlier today, the Supreme Court of Canada announced that it will not

hear the City of Kingston’s appeal of the Belle Park judgment issued in

May by the Ontario Court of Appeal.

In May 2004, the Court of Appeal had ruled that, in order to obtain a conviction for the offence of “depositing deleterious substances into water

frequented by fish,” it was not necessary for the prosecution to prove that

the river water became harmful to fish. The City’s expert witness evidence

has been that the deposit of leachate into the Cataraqui River, from the

former Belle Park land fill site, did not cause any harm to aquatic life in the

river. The Crown led no evidence that the water became harmful to fish in

the river. As a result, the City’s position throughout this case has been that

where no harm has been done, it should not be convicted of a quasi-criminal offence.82

36 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

80. Sections 34(1) and 40(5)(b) of the Fisheries Act. It has been held that even if there are no

fish in the vicinity of the deposit, where the surrounding water is tidal in nature and

fish-bearing, the deposit is considered to have been made to water frequented by fish;

R. v. Stora Forest Industries, [1993] N.S.J. No. 330 (Prov. Ct.).

81. To establish that a substance is deleterious, it suffices to prove that its deposit would

make the water harmful to fish. See e.g., R. v. MacMillan Bloedel (Alberni) Limited

(1978), 42 C.C.C. (2d) 70 (B.C. Co. Ct.), at 73-74, affirmed 47 C.C.C. (2d) 118 (B.C.S.C.),

leave to appeal to S.C.C. denied (1979), 47 C.C.C. (2d) 118n (S.C.C.); “the Court held

that “[t]he effect of the Act is to provide that if such a substance has had a harmful

effect on fish elsewhere when added to water, then it qualifies as a deleterious substance under the Fisheries Act.” See also R. v. Abitibi Consolidated (2000), 190 Nfld. and

P.E.I.R. 326; 2000 Nfld. and P.E.I.R. LEXIS 238; 576 A.P.R. 326 (Nfld. Prov. Ct.), at 51:

“In determining whether the Crown has established that there was a deposit of a deleterious substance beyond a reasonable doubt, I agree with the Crown’s assertion that

it is not necessary to establish actual harm or damage to fish or fish habitat.”

82. See Supreme Court Will Not Hear Belle Park Appeal (27 January 2005), online at City of

Kingston <http://www.cityofkingston.ca/cityhall/press/release.asp?mode=show

&id=1366> (date viewed: 30 March 2007). See also Fletcher v. Kingston, [2004] O.J.
Under section 40(2) of the Fisheries Act, violations of section 36(3)

are offences punishable on summary conviction (carrying a maximum

fine of $300,000 for a first offence and a maximum fine of $300,000

and/or imprisonment for a maximum term of six months for subsequent offences) or indictable offences (carrying a maximum fine of

$1 million for a first offence and a maximum fine of $1 million and/

or imprisonment for a maximum term of three years for subsequent

offences). Any violation of the Fisheries Act that is committed or continued for more than one day constitutes a separate offence for each day

(s. 78.1). The officers, directors and/or agents of a corporation who

direct, authorize, assent to, acquiesce in, or participate in the commission of an offence by the corporation are parties to and guilty of the

offence and are liable on conviction to the punishment provided for the

offence, whether or not the corporation has been prosecuted (s. 78.2).

6.2.3 Defences against charges under section 36(3)

A violation of section 36(3) is a strict liability offence. Under the

Fisheries Act, this means that even if the Crown proves all the elements of

the offence beyond a reasonable doubt, the defendant will not be convicted for violating section 36(3) if it presents a defence and can prove,

on a balance of probabilities, that the facts support this defence.83 For

example, even if the Crown proves beyond a reasonable doubt that a

corporation deposited a deleterious substance into water frequented by

fish, the corporation will be acquitted if it can prove, on a balance of

probabilities, that it was duly diligent in attempting to prevent the

deposit. “Due diligence” requirements vary depending on the facts of

each case.

6.2.3.1 Due Diligence

Under the Fisheries Act, a defendant is acquitted if he can prove that

he exercised due diligence to prevent the commission of the offence or

reasonably and honestly believed in the existence of facts that, if true,

would render his conduct innocent (s. 78.6). Where the alleged violation

is based on the defendant’s “inaction” and the defendant is accused of

“permitting” the commission of an offence, the courts have ruled that “...

the real issue is whether the accused had exercised due diligence.”84

MEANING AND SCOPE OF SECTION 36(3) OF THE FISHERIES ACT 37

No. 1940 (Ont. C.A.), and Environmental Commissioner of Ontario, Annual Report

(2001-2002) at p. 57: “Fisheries Act Enforcement in Ontario,” online at <http://www.

eco.on.ca/english/publicat/ar2001.pdf> (date viewed: 30 March 2007).

83. Section 78.6 of the Fisheries Act.

84. R. v. Rivtow Straits Ltd. (1993), 12 C.E.L.R. (N.S.) 153 (B.C.C.A.), p. 44.
Due diligence requirements relating to contaminated land were

recently examined in Ontario, in a case involving the Ontario Ministry of

the Environment (MOE) acting as “remediator of last resort” for the

Deloro mine.85 Relatively detailed information on this case is provided

here, for it illustrates well how the courts apply section 36(3) to facts similar in many respects to those relating to Montreal Technoparc (see

below, s. 8). The distinction established between the evidence required

under section 35(1) (habitat protection) and that which must be provided under section 36(3) (pollution prevention) of the Fisheries Act is

particularly relevant, as is the analysis of the due diligence obligations

falling of the party who becomes responsible for a site. Relevant information regarding the Deloro case is presented below.

After a century of mining and smelting activities, different types of

arsenic and other wastes had accumulated on site at the Deloro mine. In

the late 1950s, high concentrations of arsenic were detected in a nearby

river. Subsequently, it was discovered that sediment, groundwater and

surface water contamination were all contributing to pollution of the

river. The mine was sold to a shell company, and that company abandoned the site after being issued an MOE remediation order, followed by

a stop order. The MOE became the “remediator of last resort” under the

Ontario Environmental Protection Act in 1979. Thereafter, remediation

efforts were hampered by lack of remediation funding. Charges were laid

against the MOE for violations of the Ontario Water Resources Act and ss.

35(1)86 and 36(3) of the Fisheries Actduring the 1995-97 period (hereinafter,

the “charge period”). At trial, the court found that upon taking over the

site, the MOE was immediately subject to liability under the habitat protection and pollution prevention provisions of the Fisheries Act.87

Under s. 35(1) of the Fisheries Act, the Crown had to prove that

inaction by the MOE resulted in harmful alteration, destruction, or

38 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

85. R. v.Ontario (Ministry of the Environment), [2001] O.J. No. 2581 (Ont. Ct. J.) (hereinafter,

“Deloro”).

86. Section 35(1): “No person shall carry on any work or undertaking that results in the

harmful alteration, disruption or destruction of fish habitat.” Here, the court accepted

the prosecution’s definition of “work” as being “the management and control of the

site” (Deloro at 155).

87. “When the defendant assumes management and control over an abandoned property

(or over a property still operated by an owner unwilling to act) it does so to protect the

environment from further deterioration by the refusal to remediate. It must act

accordingly.... The intervening entity must proceed with the remediation of the property with due diligence. The entity is indeed immediately subject to prosecution for

permitting discharges which were not caused by it.” Deloro at 139-40. The court also

held that the status of the party was a factor to be considered in assessing due diligence.
disruption of fish habitat. The Crown was successful in proving that

metal-contaminated sediments in the river were having a deleterious

effect on fish. However, it was not successful in proving that MOE inaction during the charge period (1995-97) had resulted in the sediment

contamination identified by the prosecution. The judge ruled that “there

is little evidence before me to establish that the metal contaminants in

that sediment were deposited since the defendant has taken control of

the site, let alone the charge period.”88

Contrary to section 35(1), section 36(3) does not require proof of

harm to fish habitat, but only proof that a deleterious substance was

deposited into water frequented by fish (see section 6.2.2, above). Consequently, in determining whether there had been a violation of s. 36(3) at

Deloro, the court accepted evidence that in the scientific literature, levels

of metals such as those registered in the river were stated to be harmful

to fish, and pointed out that the law (s. 36(3)) does not require proof that

the metals are actually causing an effect in the river.89 The judge specifically rejected the defence’s argument that the prosecution had failed to

make its case because it had not conducted field studies to determine

whether arsenic in the river was absorbed by fish. He stated that the law

does not require such specificity, and concluded that the prosecution

had established all elements beyond a reasonable doubt.90

The court then considered whether the MOE had been duly diligent in its management of the site between 1995 and 1997. The court

specified that even though the MOE had been in charge of the site for

much longer, it only needed to prove due diligence for the charge

period. It also clarified that:

[e]vidence of the defendant’s actions prior to that period is relevant to the

proper understanding of the efforts made during the charge period. It is

obvious that if the remediation plans are suspended during the charge

period as a result of unforeseen circumstances, the due diligence must be

addressed in the context of the action which preceded the “event” [i.e., the

1995-97 period]. Similarly, if the solutions to the polluting act are provided

and planned for prior to the “event” and not acted upon, the previous

efforts at remediation will not satisfy the due diligence criteria. In other

words, due diligence must be placed in context but the context cannot be

determinative of the issue.91

MEANING AND SCOPE OF SECTION 36(3) OF THE FISHERIES ACT 39

88. Ibid. at 161.

89. Ibid. at 165.

90. Ibid. at 166-167, 171.

91. Ibid. at 174.
The court also cited case law defining due diligence requirements

under Canadian law. Due diligence does not require superhuman

efforts, but rather a high standard of awareness and decisive, prompt,

and continuing action. It requires the taking of all reasonable steps, not

all conceivable steps.92

The court considered the prosecution’s argument that the MOE

had failed to establish due diligence because the provincial government

had failed to provide funding for the remediation effort on a timely

basis. The court cited judicial precedent for the view that “the government’s decision for the disbursement of public funds is not subject to

judicial review.”93 It clarified that the court’s “function at trial, however,

is not to ‘review’ the decision but to assess its impact.” The court went on

to hold that:

Courts should not be placed in a position where they are required to assess

the respective priorities of the government of the day. It must, however,

consider the economic requirements of remediation in the context of the

overall income of the defendant. When a corporation seeks to claim an

inability to fully remediate a site, the Courts are not required to examine

the financial records to assess the appropriateness of the corporation’s

expenditures. It can, however, require financial context to determine the

issue.

I do not find it necessary to make determinations of fact with respect to

funding. Whether the requests for approval were being delayed, denied or

simply going through the process is not determinative. The Court must

look at the end result.

Although too much time had elapsed in fragmented studies of parts of the

property previously, as of 1993 the defendant had a detailed and planned

approach to the remediation of a complex site. The defendant proceeded

40 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

92. Ibid. at 175-176. The judge also cited a case that lists factors that must be weighed and

balanced in assessing due diligence: 1) the nature and gravity of the adverse effect;

2) the foreseeability of the effect, including abnormal sensitivities; 3) the alternative

solutions available; 4) legislative or regulatory compliance; 5) industry standards;

6) the character of the neighbourhood; 7) what efforts have been made to address the

problem; 8) over what period of time, and promptness of the response; 9) matters

beyond the control of the accused, including technological limitations; 10) skill level

expected of the accused; 11) the complexities involved; 12) preventative systems;

13) economic considerations; and 14) actions of officials; R. v. Commander Business

Furniture, [1992] O.J. No. 2904, 1992 Carswell Ont. 222 (Ont. Ct. J. (Prov. Div.)), cited in

Deloro at 177.

93. Hamilton Wentworth (Regional Municipality) v. Ontario (Minister of Transportation)

(1991), 2 O.R. (3d) 716 (Div. Ct.), leave to appeal to Ont. C.A. denied, [1991] O.J.

No. 3201 (12 August 1991), Doc. A-48/ 91 cited in Deloro at 182.
with minor but essential components of its plan pending the approval of

funding.94

The court concluded that on the basis of all the factors that needed

to be considered, the MOE had established on a balance of probabilities

that it was duly diligent in the charge period and the defendant was

acquitted.

Moreover, the courts have rejected the due diligence argument in

cases where the defendant took a calculated risk in regard to the possibility of contravening section 36(3). For example, in one case a municipality commissioned a wastewater plant that had been designed — to

save money — in such a way that wastewater was discharged directly

into a watercourse in an emergency. An emergency occurred, wastewater was discharged into a watercourse, and the municipality was

found guilty despite the fact that it had exercised due diligence in the

application of emergency measures and plant maintenance.95

6.2.3.2 Defences Based on Actions of the Regulator

The common law affords other defences and relief; for example,

“officially induced error” and “abuse of process,” both of which serve to

prevent a person from being convicted for action or inaction which,

when it occurred, appeared (to a reasonable person) to meet with government approval. Information on this defence is provided below, along

with information on the defence of abuse of process, which is also based

on actions of the regulator.

A defendant must satisfy four conditions to invoke the defence of

official induced error of law successfully.96 It must have considered its

legal position and sought advice about it; consulted an appropriate official; obtained erroneous advice that was reasonable in the circumstances; and relied on the advice. The Supreme Court of Canada has held

that because it functions as an “excuse” and not a “justification” for

wrongful behaviour — and therefore results in a stay of proceedings

rather than an acquittal — “an officially induced error of law argument

will only be successful in the clearest of cases.”97

MEANING AND SCOPE OF SECTION 36(3) OF THE FISHERIES ACT 41

94. Deloro at 182-184.

95. R. v. North Vancouver (District), [1982] 3 F.P.R. 233 (B.C. Prov. Ct.), affirmed [1983]

3 F.P.R. 249 (B.C. Co. Ct.), affirmed [1984] 3 F.P.R. 491 (B.C.C.A.).

96. See R. v. Jorgensen, [1995] 4 S.C.R. 55, 129 D.L.R. (4th) 510, at 25-38.

97. Ibid. at 37.
Depending on the circumstances, advice from provincial officials

on the requirements of a federal statute may serve as a basis for a defence

of officially induced error, “... provided that a reasonable person would

consider that particular government organ to be responsible for the law

in question. The determination relies on common sense rather than constitutional permutations.”98

The existence of a permit or approval is sometimes invoked as

providing the basis for a defence of officially induced error. In such

cases, the defendant claims that it honestly, reasonably, and mistakenly

believed that by complying with the permit, it was satisfying all requirements under the law. In a 1998 report on Environment Canada’s enforcement of section 36(3), the House of Commons Standing Committee on

Environment and Sustainable Development cited “officially induced

error” as a barrier to effective federal law enforcement. It explained:

A further barrier to the effective enforcement of the federal legislation

occurs when authorizations or permits granted by another level of government conflict with the federal environmental legislation. These permits or

authorizations might allow the release of pollutants into the environment

in amounts that would constitute an offence under a federal law or regulation. Offenders, however, are not always prosecuted in such cases

because, by reason of the permit or authorization, they can raise the

defence of “government-induced error.” Since the chances of obtaining a

conviction in such cases are questionable, charges may not be laid in the

first place, or if they are laid, they may not be proceeded with, or again,

they may result in an acquittal.99

The committee cited the Head of the Inspections Division for the

Pacific and Yukon Region of Environment Canada, who gave the committee several examples of aborted prosecutions:

The first example was a private individual who basically created a landfill

on his property that ended up leaching into the most productive part of a

salmon-bearing stream. He dealt with civic officials, who eventually

brought in the provincial officials, and eventually I was called by the

mayor and we initiated an investigation. We dealt with almost three

months of trial and proved the offence technically, but the interference

and the conflicting information given by the other officials in the junior

levels of government created a situation called government-induced

42 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

98. Ibid. at 31.

99. Canada, House of Commons Standing Committee on Environment and Sustainable

Development, Enforcing Canada’s Pollution Laws: the Public Interest Must Come First!:

Third Report (Ottawa: The Committee, 1998), at 72-73.
error, and the judge made a decision that [the accused] had been duly diligent and that it was the confusion of the officials that related to that.100

The Standing Committee recommended that Environment Canada

take steps to inform the regulated community of its obligations under federal laws. Regarding the defence of officially induced error, the courts

have held that whether this defence will be successful depends on a consideration of all the factors that must be proved, including that the defendant was duly diligent by making appropriate inquiries.101

A defendant may invoke “abuse of process” as a defence in cases

where entering a conviction would be unconscionable, risking bringing

the administration of justice into disrepute. This would be the case, for

example, if a person were charged with an offence after having been

assured that no enforcement action would be taken, or after having

agreed on a plan of remedial action and a timetable with the regulator

and having implemented the plan in accordance with the timetable.102

This defence is also only available in the clearest of cases, and past

non-enforcement alone may not be enough, absent an express or implied

promise not to prosecute, to make this defence available. The Supreme

Court of Canada has stated that to amount to one of the clearest of cases,

there must be “overwhelming evidence that the proceedings under

scrutiny are unfair to the point that they are contrary to the interest of

justice.”103

6.2.4 Court Orders upon Conviction

The Fisheries Act gives the courts broad powers to issue orders

upon conviction, in addition to any punishment imposed (s. 79.2). A

court can order the convicted person to do or refrain from doing anything in order to prevent the continuation or repetition of the offence or

to remedy harm to fish or fish habitat resulting from the commission of

the offence, and it can secure compliance with this order by requiring

posting of a bond or payment of an amount of money into court. It can

order the convicted person to compensate the Minister of Fisheries and

MEANING AND SCOPE OF SECTION 36(3) OF THE FISHERIES ACT 43

100. Ibid at 73.

101. See R. v. Northwest Territories (Commissioner) (1994), 15 C.E.L.R. (N.S.) 85 (N.W.T.

S.C.), where the Town of Iqaluit was unsuccessful in arguing that its license under

the Northern Inland Waters Act, which authorized it to “use waters,” covered sewer

discharges, since it was discharging sewage to waters not covered by the license and

in any event, nothing in the license exempted the town from complying with the

Fisheries Act.

102. Re Abitibi Paper Co. and the Queen (1979), 47 C.C.C. (2d) 487 (Ont. C.A.).

103. R. v. Power, [1994] 1 S.C.R. 601, 89 C.C.C. (3d) 1, at 12.
Oceans for any remedial or preventive action taken by or on behalf of the

Minister as a result of the commission of the offence. Finally, it can

require the convicted person to report to the court on its activities following conviction and can set any other conditions it considers appropriate

to secure the person’s good conduct and to prevent repetition of the

offence or commission of other violations of the Fisheries Act by that person. Violation of such an order makes the convicted person liable to the

punishment provided for the underlying offence (s. 79.6). Under the

Fisheries Act, money owed under court orders becomes a debt due to the

Crown (s. 79.4(1)).

6.2.5 Injunctions

The Attorney General can apply for an injunction to enjoin anything punishable as an offense under s. 40 of the Fisheries Act, whether or

not a prosecution has been instituted (s. 41(4)).

6.2.6 Civil Suits to Recover Remediation Costs

Where there occurs a prohibited deposit of a deleterious substance

into water frequented by fish or a serious and imminent danger of such a

deposit, the Fisheries Act authorizes the Crown to institute a civil action

against the owner of the substance or the person who caused the deposit,

for recovery of all costs and expenses incurred by federal or provincial

officials to prevent the deposit or to mitigate or remedy any adverse

effects that resulted or may reasonably be expected to result from the

deposit (s. 42(1)).

7. Enforcement and Compliance Promotion Policies for Section

36(3) of the Fisheries Act

As indicated in section 6.2, above, the Fisheries Act prescribes various responses to alleged violations of section 36(3), including requests

for information or ministerial orders, prosecution, court orders upon

conviction, injunctions, and civil suits to recover remediation costs.

This section of the factual record contains information gathered by

the Secretariat concerning the basis for the approach taken by Environment Canada to enforce section 36(3) and promote compliance with that

section in relation to Montreal Technoparc. This information, taken

together with that presented in section 8, is relevant to a consideration of

whether Canada is failing to effectively enforce section 36(3) in relation

to Montreal Technoparc.

44 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
Sections 7.1, 7.2, and 7.3 describe the manner in which Environment Canada, the Department of Fisheries and Oceans (DFO), and

the Department of Justice determine which measures should be taken

in response to an alleged violation of the Fisheries Act, based on their

policies. Under these policies, enforcement measures taken by federal

authorities are among the numerous types of measures available to

them in cases of noncompliance. The most appropriate measure is considered to be the one most likely to lead to compliance within the shortest time possible and without a reoccurrence of the offence. Section 7.3

addresses the issue of law enforcement when federal interests are at

stake.

7.1 Fisheries Act Habitat Protection and Pollution Prevention

Provisions Compliance and Enforcement Policy

Under the law, it is the minister of Fisheries and Oceans who is

responsible for the administration and enforcement of the Fisheries

Act.104 However, in 1978, the Prime Minister of Canada delegated

responsibility for the administration and enforcement of what was then

section 33(2) and is now section 36(3) to the federal minister of the environment. A memorandum of understanding signed in 1985 by the DFO

and Environment Canada defines the responsibilities of the two departments in regard to the administration and enforcement of the pollution

prevention-related provisions of the Fisheries Act.105

In signing the memorandum of understanding, DFO and Environment Canada agreed to cooperate and communicate openly and

regularly with each other on any and all matters relating to the administration of section 36(3) (clause 1). Regionally, the senior managers of the

two departments are responsible for communicating with each other on

matters such as major development projects, actions proposed by agents

of provincial governments, identification of fishery resource or habitat

information required to support protection actions, proposed regulations and amendments to existing regulations, and annual program

reviews (clause 2). The two departments make joint decisions on

enforcement measures (clause 4), but the DFO reserves the right to take

action in circumstances where the fisheries resource is being affected by

the deposit of a deleterious substance and where Environment Canada

is unable or unwilling to take action (clause 8). Regional working level

ENFORCEMENT AND COMPLIANCE PROMOTION POLICIES 45

104. Section 4(1)(a) of the Department of Fisheries and Oceans Act, R.S.C. 1985, c. F-15.

105. Memorandum of Understanding between the Department of Fisheries and Oceans

and the Department of the Environment on the Subject of the Administration of Section 33 of the Fisheries Act signed at Ottawa, Ontario, 6 May 1985.
officials are responsible for settlement of disputes (clause 3); any issue

unresolved at the regional level is referred to the assistant deputy ministers (whose sectors were known in 1985 as Pacific and Freshwater Fisheries (DFO) and Environmental Protection Service (EC); paragraph

5(a)). The assistant deputy ministers also consider proposed regulations

and amendments to existing regulations, and discuss national policy

issues of concern to the parties (paragraphs 5(b) et (c)).

Environment Canada officially published the Compliance and

Enforcement Policy in November 2001. The Compliance and Enforcement Policy specifies that regulatory officials will enforce the fish habitat protection and pollution prevention provisions of the Fisheries Act

through promotion and enforcement.106 In accordance with this policy,

enforcement is carried out through the following activities: inspections;

investigations; issuance of warnings107 and directions by inspectors,

authorizations, and ministerial orders; and court actions, such as injunctions, prosecution, court orders upon conviction, and civil suits for

recovery of costs. Compliance promotion measures consist of communication and publication of information, public education, consultation

with affected parties, and technical assistance.

The Compliance and Enforcement Policy sets out the guiding principles governing the enforcement of the fish habitat protection and pollution prevention provisions of the Fisheries Act.108 Pursuant to these

principles, compliance with the provisions of the Act and its accompanying regulations is mandatory. Enforcement personnel will administer

the provisions and regulations in a manner that is fair, predictable, and

consistent, using rules, sanctions and processes securely founded in law.

Enforcement personnel will administer the provisions and accompanying regulations with an emphasis on preventing harm to fish, fish habitat

or human use of fish caused by physical alteration of fish habitat or pollution of waters frequented by fish. Priority for action to deal with suspected violations will be guided by: the degree of harm to fish, fish

habitat or human health, or the risk of such harm, and/or whether or not

the alleged offence is a repeat occurrence. Enforcement personnel will

take action consistent with the Compliance and Enforcement Policy, and

the public will be encouraged to report suspected violations. Compliance will be encouraged through communication with affected parties.

The section of the Compliance and Enforcement Policy titled

“Responses to Alleged Violations” contains the following statement:

46 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

106. Compliance and Enforcement Policy, p. 3.

107. See above, section 3, “Summary of Canada’s Response.”

108. Compliance and Enforcement Policy, p. 4.
“Enforcement measures are directed towards ensuring that violators

comply with the Fisheries Act within the shortest possible time and

that violations are not repeated.”109 The Compliance and Enforcement

Policy, which was in effect at the time of Environment Canada’s investigation of Technoparc in 2002 (see section 8.5.1 below), further states:

Enforcement personnel will respond to suspected violations. They will

take into account the harm or risk of harm to fish, fish habitat and/or

human use of fish. If they determine that there is sufficient evidence a violation has occurred, they may take enforcement action.110

The draft version of the Compliance and Enforcement Policy in use

by Environment Canada when it issued a warning to the city of Montréal

in 1998 stated: “If they determine that there is sufficient evidence a

violation has occurred, they will take enforcement action” (emphasis

added).111

If enforcement personnel determine that an alleged violation has

occurred and there is sufficient evidence to proceed, they must decide

which measures to take based on three criteria set out in the Compliance

and Enforcement Policy: nature of the alleged violation, effectiveness in

achieving the desired result with the alleged violator, and consistency in

enforcement.112

In assessing the nature of the alleged violation, enforcement personnel must take the following factors into account: the seriousness of

the damage to the environment; the intent of the alleged violator;

whether it is a repeat occurrence, and whether there were attempts by

the alleged violator to conceal information or otherwise circumvent the

objectives and requirements of the habitat protection and pollution prevention provisions.113

As to effectiveness in achieving the desired result with the alleged

violator, the Compliance and Enforcement Policy stipulates as follows:

ENFORCEMENT AND COMPLIANCE PROMOTION POLICIES 47

109. Ibid., p. 18.

110. Ibid.

111. Response of the Government of Canada to a Submission on Enforcement Matters under

Articles 14 and 15 of the North American Agreement on Environmental Cooperation,

Submission No. SEM-98-004 of June 29, 1998 by the Sierra Club of British Columbia, the

Environmental Mining Council of British Columbia and the Taku Wilderness Association

(BC Mining) (8 September 1999), Appendix 4.

112. Compliance and Enforcement Policy, p. 18.

113. Ibid.
The desired result is compliance with the Act in the shortest possible time

and with no further occurrence of violations, in order to protect fish and

fish habitat and human use of fish.114

The following factors are considered: the alleged violator’s history

of compliance with the Act; the alleged violator’s willingness to cooperate with enforcement personnel; the evidence and extent of corrective

action already taken, and the existence of enforcement actions by other

federal or provincial/territorial authorities.115

Under the Compliance and Enforcement Policy, enforcement personnel aim to achieve consistency in their responses to alleged violations. The Compliance and Enforcement Policy therefore specifies that

enforcement personnel must consider how similar situations in Canada

are being or have been handled when deciding what enforcement action

to take.116 As regards prosecutions for violations of section 36(3) arising

from runoff of leachate from a former municipal landfill site, Environment Canada published the following press release in June 2006:

MONCTON, New Brunswick, June 23, 2006 — Gemtec Ltd. and company

official Robert Lutes were sentenced in Provincial Court in Moncton, New

Brunswick today of violating the pollution prevention provisions of the

Federal Fisheries Act. The charges relate to the deposit of acutely lethal

landfill leachate that entered the Petitcodiac Watershed from the former

Moncton Landfill Site.

Both Gemtec, an environmental consulting company, and Mr. Lutes, a

Gemtec principal and project manager, were convicted on April 26, 2006

by Judge Yvette Finn after a five-week trial. Judge Finn fined the company

$5,000 and Robert Lutes $1,000 for their involvement in the offences. In

addition to the fine, Gemtec Ltd. must contribute $10,000 to the Government of Canada’s Environmental Damages Fund. Mr. Lutes must also

contribute $1,000 to the Fund. The Fund, which is administered by Environment Canada, is used to restore environmental damage or to prevent

environmental damage from occurring. Finally, Gemtec has been ordered

to pay $10,000 to the Jonathan Creek Committee, a local environmental

organization, while Mr. Lutes must pay $1,000 to the committee.

This case is a landmark in environmental protection. These convictions

mark the first time that an engineering consultant company has been convicted of providing advice to a client that resulted in the client violating

federal environmental law. This case has demonstrated that consultants

48 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

114. Ibid.

115. Ibid.

116. Ibid.
who fail to incorporate environmental compliance into their advice to clients can and may be held accountable for their role in any resultant environmental offence.

Charges were laid by Environment Canada on March 12, 2002, against

Gemtec Ltd., Gemtec Project Engineer Robert Lutes, the City of Moncton,

and Moncton City Engineer Geoff Greenough after a year-long investigation by Environment Canada Enforcement Officers. The investigation was

initiated as a result of a complaint made to Environment Canada by the

Petitcodiac Riverkeepers, a local environmental organization.

Landfill leachate is a liquid substance that percolates from the ground as a

result of deposited garbage mixing with rainwater and melting snow.

On September 23, 2003, the City of Moncton pleaded guilty and charges

against Mr. Greenough were withdrawn by the Crown. The City paid a

$35,000 fine and was ordered to take remedial measures to reduce the

leachate flow from the landfill site.

Gemtec Ltd. is an engineering consulting company that was hired by the

City of Moncton to provide closure options for the former Moncton landfill. Gemtec Ltd. was also contracted by the City of Moncton to implement

the closure plan that it had recommended.

Environment Canada investigates alleged offences under the Canadian

Environmental Protection Act, 1999 and the Fisheries Act, in order to ensure

that companies, government employees and the general public comply

with legislation and regulations that protect Canada’s environment.117

7.2 Decision to Prosecute

As mentioned in 6.2.2 above, under section 36(3) of the Fisheries

Act, it is not necessary to prove that fish or their habitat were actually

harmed in order to establish the elements of the offence. It is sufficient to

prove that the substance deposited is harmful to fish. Under the Compliance and Enforcement Policy (see section 7.1 above), prosecution is the

preferred course of action where evidence establishes that:

ENFORCEMENT AND COMPLIANCE PROMOTION POLICIES 49

117. See “Sentencing in Landmark Environmental Law Case” online at Environment

Canada <http://www.ec.gc.ca/default.asp?lang=En&n=714D9AAE-1&news=

D9FB5515-46A6-4FD3-BFE7-90E281EFEB98>(date viewed: 2 April 2007). This decision was appealed to the Court of Queen’s Bench of New Brunswick; the appeal was

heard on 19 December 2006. A complaint by Sentinelles Petitcodiac Riverkeeper,

based on analyses conducted by Environmental Bureau of Investigation (EBI) of

Ontario, gave rise to this prosecution; see Sentinelles Petitcodiac Riverkeeper,

L’ancien lieu d’enfouissement de Moncton tue les poissons – La dilution n’enraye pas la

pollution (12 December 2000).
the alleged violation resulted in risk of harm to fish or fish habitat; the

alleged violation resulted in harmful alteration, disruption or destruction

of fish habitat (not authorized by the Minister of Fisheries and Oceans); the

alleged violator had previously received a warning for the activity and did

not take all reasonable measures to stop or avoid the violation; the alleged

violator had previously been convicted of a similar offence.118

As mentioned in 6.2.2 above, under section 36(3) of the Fisheries

Act, it is not necessary to prove that fish or their habitat were actually

harmed in order to establish the elements of the offence. It is sufficient to

prove that the substance deposited is harmful to fish. Under the Compliance and Enforcement Policy, prosecution is therefore ruled out or at

any rate unlikely in cases where a deleterious substance was deposited

but no harm was or is likely to be caused to fish or their habitat.

Under the Compliance and Enforcement Policy, prosecution will

always be pursued where evidence establishes that:

the alleged violation was deliberate; the alleged violator knowingly provided false or misleading information to enforcement personnel; the

alleged violator obstructed enforcement personnel in the carrying out of

their duties or interfered with anything seized under the Act; the alleged

violator concealed or attempted to conceal or destroy information or evidence after the alleged offence occurred; or the alleged violator failed to

take all reasonable measures to comply with a direction or an order issued

pursuant to the Act.119

Where prosecution is being considered, the Attorney General, who

reports to the Department of Justice, must approve the laying of charges.

He or she must consider two issues when deciding whether to prosecute.

Is the evidence sufficient to justify the initiation or continuation of proceedings? And if it is, does the public interest require a prosecution to be

pursued?120 Under Department of Justice policy, it is not the rule that all

offences for which there is sufficient evidence to proceed must be prosecuted. Prosecution is only pursued where the public interest so requires,

“in the light of the provable facts and the whole of the surrounding circumstances.”121

50 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

118. Compliance and Enforcement Policy, p. 22.

119. Ibid.

120. Canada, The Federal Prosecution Service Deskbook [hereinafter, the “Deskbook”],

Part V, “Proceedings at Trial and on Appeal”, ch. 15, “The Decision to Prosecute”

(Ottawa: Justice Canada, 2005) [hereinafter, “Decision to Prosecute”], s. 15.2, online

at Department of Justice Canada <http://www.justice.gc.ca/en/dept/pub/fps/

fpd/toc.html> (date viewed: 28 May 2007).

121. “Decision to Prosecute,” s. 15.3.2.
In the case of regulatory violations, such as violations of section

36(3), Department of Justice policy is as follows:

it is appropriate for Crown counsel to consider the views of the investigative agency in considering whether prosecution is warranted. This may be

particularly important in the case of prosecutions under statutes such as

the Immigration and Refugee Protection Act, the Fisheries Act, the Competition

Act or the Income Tax Act, where the offence provisions serve important

regulatory goals. Consideration of what the public interest requires will of

necessity require consideration of how the regulatory purpose of the statute might best be achieved.122 If, for example, the relevant regulatory

authority has a mechanism for dealing with the alleged offender such as a

compliance program, Crown counsel should consider whether an alternative such as this might better serve the public interest than prosecution.

The need to understand the particular regulatory context underscores the

obligation of Crown counsel to consult in carrying out counsel’s duties

under this policy.123

The policy lists the following irrelevant criteria:

• the race, national or ethnic origin, colour, religion, sex, sexual orientation, political associations, activities or beliefs of the accused or any

other person involved in the investigation;

• Crown counsel’s personal feelings about the accused or the victim;

• possible political advantage or disadvantage to the government or any

political group or party; or

• the possible effect of the decision on the personal or professional circumstances of those responsible for the prosecution decision.124

Department of Justice policy also contains provisions concerning

prosecutions against the Crown.125The following explanation is given:

Many federal statutes and their accompanying regulations create offences

aimed at deterring conduct that is capable of “inflicting serious harm on

large segments of society”. Such offences are usually referred to as “regulatory” or “public welfare” offences, and deal with such important subject-matter as workplace safety and environmental protection.

ENFORCEMENT AND COMPLIANCE PROMOTION POLICIES 51

122. The Fisheries Act briefly contained a section setting out its purposes, including “[...]

to provide for the conservation and protection of fish and water frequented by fish,”

but this section was repealed as soon as it was enacted; S.C. 1985, c. 31, ss. 2.1(a), 6.

123. “Decision to Prosecute,” s. 15.3.2.1.

124. Ibid., s. 15.4.

125. Deskbook, Part VI, ch. 32, “R. v.R.: Prosecutions by the Crown Against the Crown.”
On occasion, government departments, Crown corporations or their

employees engage in the proscribed conduct. As a result of this, the prosecuting arm of the government (as represented by the Attorney General),

may have to consider prosecuting a different arm of the government, a scenario commonly referred to as “R. v. R.”126

Concerning R. v. R. cases, Department of Justice policy contains a

statement of purpose and describes the procedure to be followed at the

investigative stage and when deciding whether to pursue prosecution of

the Crown:

Purpose of the Policy

This policy has three objectives:

• to affirm the principle that governmental offenders of regulatory legislation will be treated similarly to private individuals;

• to manage potential conflicts of interest that may arise from the roles of

departmental counsel in the provision of legal advice; and

• to outline the procedures to be followed in commencing and conducting R. v. R. prosecutions.

The Investigative Stage

During the investigative stage, Department of Justice counsel may be

called upon to advise not only the investigative agency, but also the

department [the same situation may also arise with respect to Crown corporations] which is under investigation. For example, Crown counsel may

be called upon by investigators prior to the obtaining of a search warrant,

and legal services counsel may be contacted by the department being

searched during the execution of that warrant.

The Department of Justice cannot provide legal advice to both the investigating agency and the department under investigation in such circumstances. Accordingly, the role of departmental counsel advising the

department under investigation will be limited to assisting that department in obtaining counsel from the private sector.

The Decision to Prosecute

Crown counsel may be called upon to assess whether a prosecution

should occur in one of two ways. The investigative agency may simply lay

charges, and refer the matter for prosecution; or, the investigative agency

may provide a prosecution brief for pre-charge screening with a recommendation that proceedings be instituted.

52 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

126. Ibid., s. 32.1.
In both circumstances, Crown counsel will assess the proposed prosecution by applying the policy on “The Decision to Prosecute”. This will be

done in consultation with the Prosecution Group Head and the Senior

General Counsel (Criminal Law) in Ottawa.

In all such cases, an opinion will also be sought from counsel from the private bar (“outside counsel”) or counsel for a provincial attorney general

who will be asked to apply the “Decision to Prosecute” criteria. Once opinions from both Crown counsel and outside counsel are obtained, the matter will be forwarded to the Assistant Deputy Attorney General (Criminal

Law) for a final decision. The outside counsel’s opinion regarding the

appropriate charges will be considered along with departmental counsel’s

in deciding which charges to proceed with.

The Deputy Attorney General is informed immediately after the “Decision to Prosecute” exercise is complete. If charges are authorized,

Crown counsel, in consultation with the Environmental Prosecutions

Co-ordinator in the Criminal Law Branch, should ensure that appropriate

officials in the Privy Council Office, and the legal service units for both the

investigative agency and the defendant department are advised.127

Since 2005, Department of Justice policy contains a chapter on legal

risk management (LRM).128 It explains that cases involving significant

legal risk, including cases that will have an impact on federal/provincial/territorial relations, are the LRM priority.129 The types of cases most

likely to fall into the “significant risk” category include prosecutions

against the Crown (“R. v. R.”).130 The policy stipulates that the Assistant

Deputy Attorney General has the following obligations concerning the

implementation of LRM:

• ensuring roles and responsibilities are understood within the organization;

• keeping abreast of all significant risk cases within the [Federal Prosecution Service];

• informing and engaging senior officials, including Ministers, on significant risk cases and key LRM issues;

• identifying and analyzing government-wide trends; and

• encouraging the use of appropriate instruments, including alternative

dispute resolution.131

ENFORCEMENT AND COMPLIANCE PROMOTION POLICIES 53

127. Ibid.

128. Deskbook, Part XII, ch. 55, “Legal Risk Management.”

129. Ibid., s. 55.3.4, “How do we assess risk?”

130. Ibid.

131. Ibid., s. 55.5.1, “Role of the [Assistant Deputy Attorney General] (Criminal Law).”
7.3 Enforcement of Section 36(3) of the Fisheries Act and

Compliance Promotion Where Federal Interests are at Stake

Section 3(2) of the Fisheries Actprovides that the Act is binding on the

federal government and the provinces. In the Montreal Technoparc case,

federal interests have always been at stake. Over the years, several federal

Crown corporations have carried on activities on and around the Technoparc lands. It was the Montreal Port Corporation, a federal entity, which

sold the lots comprising Technoparc to the city of Montreal in 1989

(see below, s. 8.2.1). In the early 1990s, Transport Canada’s process to

privatize CN had already begun. In 1991, Environment Canada inspectors observed hydrocarbons — suspected to be diesel fuel from the CN

railyard — surfacing on the banks of the St. Lawrence.132 Privatization

was completed in 1995.133 In these two transactions, the federal government was both the seller, limiting its environmental liability in the sale

contract (see below, s. 8.2.1), and a public authority responsible for environmental law enforcement. In addition, VIA Rail Canada, a federal

Crown corporation, has carried on maintenance work next to Technoparc,

while another federal Crown corporation, Jacques Cartier and Champlain

Bridges Incorporated (JCCBI), continues to be responsible for managing

the highway (built in part on lands belonging to the Government of

Québec) separating Technoparc from the St. Lawrence River.

In 1990, the federal government made public a “green plan” with a

budget of $3 billion over five years.134 In 1992, the federal government

published the Code of Environmental Stewardship, under which it undertook to, inter alia, “[m]eet or exceed the letter and spirit of federal

54 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

132. It is probable that the diesel fuel coming from the properties of CN and VIA contains

dissolved contaminants present in the old Montreal disposal site, including PCBs,

and that these end up in the river as it passes by the properties along the Autoroute

Bonaventure. Environment Canada, EPB/Montreal, Pollution Incident Report, File

no. 4461-2/M; date and time of accident: 9 August 1991; source: unknown; location:

ADACport; quantity: undetermined; continuous discharge.

133. John Daly, “The toughest SOBs in the business” (31 January 2003), online at

<https://secure.globeadvisor.com/servlet/ArticleNews/story/LAC/20030131/

RO3SOBS/TPBusiness/ROBM> (date viewed: 11 May 2007); Russell Craig and

Joel Amernic, “The Deployment of Accounting-Related Rhetoric in the Prelude to a

Privatization” (2004) 17 Accounting, Auditing & Accountability Journal 41.

134. Canada, Department of the Environment, Canada’s Green Plan: Canada’s Green Plan

for a Healthy Environment, tabled 11 December 1990, sessional paper no. 342-4/34,

published by Supply and Services Canada, 1990: “Canada’s Green Plan offers new

policies, programs and standards to clean up, protect and enhance our land, water

and air, our renewable resources, the Arctic, parks and wildlife, and to reduce waste

generation and energy use.

This is a fully funded plan that commits the Government of Canada to $3 billion

over five years in new funding for the environment.”
environmental laws and, where appropriate, to be compatible with provincial and international standards.”135

Concerning the enforcement of section 36(3) where federal interests are at stake, in 1991, the Director of the Office of Enforcement of the

Environmental Protection Service of Environment Canada announced

that the Department had made the decision to enforce section 36(3) of the

Fisheries Act using the enforcement measures provided by the Act,

including as regards federal departments and Crown corporations,

some of which had always had difficulty accepting that they were subject to the requirements (and penalties) found in federal environmental

laws.136 In this regard, he noted:

You might think it strange for an enforcement and compliance policy to

state, as basic principles, that compliance with the law is mandatory and

that enforcement officers “will only use rules, sanctions and processes

securely founded in law.” They may seem to you to be “givens” or selfevident truths.

But, in the past, environment Canada’s approach to law enforcement had

shown to regulatees that the department was flexible on compliance.

Regulatees had experience with officials who were prepared to use rules

and processes that were not provided for in federal Environmental laws

and that were not even enforceable civil contracts. These were measures

such as letters acknowledging and tolerating non-compliant behavior for

specified lengths of time, or giving commitments not to enforce the law if

Environmental studies were done.

The negotiation of compliance and the use of tools not provided for in legislation did not work — hence, the need to stipulate as basic, general principles that “compliance with the act and its regulations is mandatory” and

that only rules, sanctions and processes founded in law would be used.

The government of Canada wanted to signal that its previous reliance on

negotiation had ended and that it was returning to the philosophy that the

law applied to everyone equally.137

However, until 2005, the regional structures of Environment Canada did not come under a central law enforcement authority, and this

hindered the application of common solutions.138

ENFORCEMENT AND COMPLIANCE PROMOTION POLICIES 55

135. Online at <http://www.ns.ec.gc.ca/g7/code.html> (date viewed: 6 July 2007).

136. Paul Cuillerier, “Enforcement of Canadian Laws of Environmental Protection as

Applied to Federal Facilities,” paper presented in session titled “Economic Development and Ownership Issues” at Second International Conference on Environmental Enforcement, International Network for Environmental Compliance and

Enforcement (INECE), Budapest, September 1992, online at <http://www.inece.

org/2ndvol1/2ndTOC.htm> (date viewed: 27 March 2007).

137. Ibid.

138. Environment Canada, “The Changing Face of Enforcement”, online at Environment Canada <http://www.atl.ec.gc.ca/enforcement/changing_face.html> (last
Moreover, during the 1990s, political pressure for constitutional

reform in Canada gave rise to a reorientation of Environment Canada’s

Environmental Protection Service, which increasingly devolved law

enforcement responsibilities to the provincial level, except in the case of

federal facilities.139 The emphasis on federal facility enforcement meant

that “pressure was exerted to temper classical enforcement responses to

violations with compliance promotion and other compliance assurance

tools.”140

Concerning promotion of compliance with section 36(3) of the Fisheries Act where federal interests are at stake, in 1996, the Auditor General

of Canada made public a report in which he mentioned the following

concerning Environment Canada’s role in the implementation of the

Code of Environmental Stewardship within the federal government, as well

as regarding the application of the Code to federal Crown corporations:

While the government made a commitment to implement the stewardship

initiative in all departments and agencies, Environment Canada saw the

process as a voluntary one. However, the only reference to such a voluntary approach in the documents we reviewed was with respect to Crown

corporations, which were excluded from the initiative but were to be

“encouraged” to adopt the Code in their operations.141

In a follow-up published in 1998, the Auditor General made the

following recommendation concerning the federal government’s greening process:

As reported in 1996, Crown corporations, which constituted over 30 percent of the government organizations contacted by the Office of Federal

Environmental Stewardship in 1992, remain formally excluded from the

greening process under either the Code of Environmental Stewardship, or

the amendments to the Auditor General Act. Although excluded, Crown

corporations were encouraged by Environment Canada to adopt the Code

of Environmental Stewardship in their operations. We suggest that the

[Federal Committee on Environmental Management Systems] contact

Crown corporations in an attempt to persuade them to participate in this

process, and thereby achieve government-wide application of the green56 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

modified: 25 March 1999). Copy available from the CEC Secretariat, in the archives

for the BC Mining factual record (organized chronologically).

139. Ibid.

140. Ibid.

141. Canada, 1996 Report of the Auditor General of Canada, c. 2, “The Implementation of

Federal Environmental Stewardship,” s. 2.15, “Environment Canada’s Interpretation of Its Role and Responsibilities.”
ing process, as was the federal government’s original intention under the

1990 Green Plan.142

Currently, federal departments are required to develop and implement sustainable development strategies under the supervision of the

Commissioner of the Environment and Sustainable Development, office

of the Auditor General of Canada.143

8. Information obtained by the Secretariat concerning

enforcement of section 36(3) of the Fisheries Act in

relation to alleged violations of this provision in

the Montreal Technoparc sector

This factual record concerns the enforcement of section 36(3) of the

Fisheries Act in relation to pollution of the St. Lawrence River caused by

deleterious substances leaching from the shore in Montreal, along the

Bonaventure Expressway, just upstream of the Victoria Bridge.144

The problem apparently surfaced in the early 1990s, shortly after

the city of Montreal began dynamic compaction work and building

municipal infrastructure on adjacent lots in preparation for the development of a high-technology park.145

INFORMATION OBTAINED BY THE SECRETARIAT 57

142. Canada, 1998 Report of the Auditor General of Canada, c. 28, “Follow-up of Recommendations in Previous Reports,” s. 28.89, “Can the government achieve its goal to

green all of its operations?”

143. See, for example, Transport Canada, Sustainable Development Strategy 2004-2006,

online at <http://www.tc.gc.ca/programs/environment/sd/sds0406/docs/

TC%20SDS_E3.pdf> (date viewed: 11 May 2007); Commissioner of the Environment and Sustainable Development, 2006 Report of the Commissioner of the Environment and Sustainable Development, c. 4, “Sustainable Development Strategies.”

144. In Montreal, following local custom, the word “north” refers to a direction corresponding approximately to geographical west. For the purposes of this factual

record, local custom is followed. Thus, unless otherwise indicated by the context,

“north” means “towards downtown,” “south” means “towards the river,” “east”

means “towards the Victoria Bridge,” and “west” means “towards the Champlain

Bridge.”

145. Environment Canada, File 4461-2/M, Pollution Incident Report, handwritten notes

(31 october 1991): “29/07/91,Tx Québec Ministry of the Environment (MENVIQ) –

Patrick Dezainde – Info concerning MENVIQ action – Emergency last year during

pipe installation by City Mtl. Oil leaked into river during excavation. The oil was

contained by booms and removed over a period of time. The file was transferred to

the industrial division, the booms were removed, and the removal measures abandoned. It appears that the oil leak persisted... Bruno L. – MENVIQ – determined that

the oil was leaking from the fill over a distance of about 2000 feet”, reproduced in

Canada,Environment Canada Response to CEC Request for Information for Preparation of

a Factual Record in Relation to Submission SEM-03-005 (Montreal Technoparc) [hereinafter, “Environment Canada Response to CEC Request for Information”] (11

August 2005), Appendix 58.
8.1 Background

Along the Bonaventure Expressway in Montreal, the natural

shoreline of the St. Lawrence River disappeared 150 years ago. The original shoreline was located in Pointe-Saint-Charles, about 500 meters from

the present-day bank (see Figure 2). It was a large marsh that was home

to great numbers of geese.146

Figure 2 Changes in shoreline, 1850–2005147

In the seventeenth century, the land in Pointe-Saint-Charles was

allotted to various religious congregations in large grants.148 Farms were

58 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

146. See Ville de Montréal, “Action-gardien de Pointe-Saint-Charles/Le Village-auxOies”, online at <http://www2.ville.montreal.qc.ca/cmsprod/fr/concertations/

historiques/Saint-Charles/3;jsessionid=99E73D7FE0E3CF479B8D7A75F95D4F64

?id=3&table=Saint-Charles> (date viewed: 15 January 2007). See also Canadian

Centre for Architecture, “Background: The Four Lives of the Pointe,” online at

<http://www.cca.qc.ca/charrette/e_bg.html> (date viewed: 28 February 2007).

147. DDH Environnement ltée, Rapport factuel d’analyse – Technoparc de Montréal, Québec,

Canada (Factual report of analysis for Montreal Technoparc), Appendix B (February

2006) [hereinafter, “DDH Report”]; SNC-Lavalin Environment, Projet d’interception

et de récupération des phases flottantes d’hydrocarbures, Technoparc, Montréal (LNAPL

containment and recovery project, Technoparc, Montreal) (final report, March

2002), Appendix A, Figures A1-A16 [hereinafter, “SLEI report”]; Québec Ministry

of Natural Resources, Fauna, and Parks (2005), plans 31H05-010-3837 and 31H05-

010-3737.

148. SLEI report, vol. 2 of 3, Appendix A – Site History. See also “Industrial Architecture

of Montreal – Pointe-Saint-Charles”, online at <http://digital.library.mcgill.ca/

industrial/ptstcharles.html> (date viewed: 6 March 2007).
established there.149 In the mid-nineteenth century, the area underwent

rapid industrial development.150 In the 1850s, construction began on the

Victoria Bridge (linking the port of Montreal by rail to the all-weather

port of Portland, Maine), and a large railyard was built near the new

bridge.151 Around 1860, the city of Montreal began to use the marsh

south of Ash Street in Pointe-Saint-Charles as a municipal dump. Over

the years the marsh was drained using dikes that extended the shoreline

out into the river.152 Railway operations dominated the area for a century. These operations ultimately covered an estimated 56 hectares (6

million square feet), much of it on land — made of waste — that

encroached on the bed of the river.153 For one hundred years, liquid

waste from the railyard was dumped directly into the marsh.154 With

INFORMATION OBTAINED BY THE SECRETARIAT 59

149. SLEI report.

150. Ibid. See also “Un point de rupture déterminant ou lorsque géographie et histoire se

rencontrent” (A decisive break, or when geography and history meet), online

at <http://www.vieux.montreal.qc.ca/plaque/horizon/fra/ruptur.htm> (last

modified: February 2003).

151. SLEI Report. See also Industry Canada, “Railway Equipment Manufacturing – Key

Points About This Industry – Rail and Urban Guided Transit Equipment Sector

Competitiveness Framework”, section titled “Canadian Industry Snapshot,” online

at <http://strategis.ic.gc.ca/epic/site/remi-pmf.nsf/en/ti01008e.html> (last

modified: 7 November 2003).

152. Société du Havre de Montréal, L’autoroute Bonaventure Vision 2025/Synthèse des

études du projet de réaménagement, October 2005 (Bonaventure Expressway Vision

2025/Summary of redevelopment project studies), “Technoparc”, pp. 3-4, online

at <http://www.havremontreal.qc.ca/fr/publications/pdf/autoroute_bonaventure/BonaventureVision2025.pdf> (date viewed: 15 January 2007).

153. Regroupement économique et social du sud-ouest (RÉSO), Projet de révision du plan

d’urbanisme, mémoire du Regroupement économique et social du sud-ouest (Brief on draft

revised urban development plan) (23 June 2004), online at <http://www2.ville.

montreal.qc.ca/ocpm/pdf/41/12c.pdf> (date viewed: 18 January 2007), p. 9.

154. Dessau Inc., Conduites d’égout du CN et phases flottantes d’hydrocarbures sur le site de

l’Adacport (CN sewer pipes and LNAPL hydrocarbons at the Adacport site; [hereinafter, “Dessau Report”]) (17 December 1990), pp. 10-11:

“2.2.2 Significant Observations

“In general, the gathering of information from former site users was rather arduous.

In several cases, the officials in charge when the pipelines were installed no longer

hold their positions, or there are no archives or documents about this work. We

were unable to accurately reconstruct the events having affected the site since the

pipelines were installed.

“The information obtained did, however, serve to establish the following facts:

– “the Adacport site, chosen for the technology center development project, was

gradually built up since 1955 by a series of backfills (see Figure 1.2 of A.D.S.

report, 1988). It will be recalled that encroachment on the banks of the St. Lawrence dates back to 1866;

– “according to the accounts of CN officials, wastewater was originally dumped

directly [into] the river at the boundary of the CN property. From there, the

[waste] water, [as it flowed toward the] river, followed natural hollows or

ditches, which changed as the site itself was built up.
time, the shoreline advanced into the river because of infilling with garbage and soil from offsite, requiring installation of sewer pipes to channel effluent from the railyard to the river.155 This effluent was known to

cause long plumes of pollution on the St. Lawrence.156

For over a century, various activities took place on the land

between the railyard and the river, adding pollutants to the diesel fuel

now surfacing on the bank. For example, the landfilled area contains

PCB-contaminated waste, given the absence of special rules for disposal

of such waste before the 1970s. In addition, when part of this area was

developed as a parking lot for Expo 67 and then, as a short-range landing

strip (Adacport) in the 1970s, airplane and auto fueling equipment was

located there.157 In the 1990s, this area was developed into a high-technology park (Technoparc).

8.2 Division of Ownership of Technoparc Sector and its Relevance

to Compliance Promotion Efforts

In Council Resolution No. 04-05 (French version), the Council

instructed the Secretariat to gather information on the division of ownership of the Montreal Technoparc sector and its relevance to compliance

promotion efforts. This information is presented below.

The spot where deleterious substances (visible to the naked eye)

are leaching into water frequented by fish (on the bank of the river,

where booms are located) is found on land that is not included in the

land registry and to which no one claims ownership.158 Upstream, a

60 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

“It was apparently only in 1965 or 1966 that the two CN pipelines were installed.

The pipelines are first mentioned in the plans prepared by the firm Lalonde, Valois,

Lamarre, Valois et Associés for construction of the Bonaventure Expressway in 1965

(plan no. NHB-13371). On these plans, the two sewer pipelines... and the manholes

are clearly indicated. They also show planned extensions from the terminal manholes running under the expressway to the river.”

155. Ibid.

156. Guy Martin, pers. comm. (26 October 2006). Mr. Martin studied the plume during

helicopter reconnaissance work while he was working for Environment Canada.

157. SNC-Lavalin, 2004 Annual Report, online at <http://www.snclavalin.com/pdf/

current/2004/rop_e.pdf> (date viewed: 25 April 2007), p. 17: “We completed cost

estimates and plans to clean up Montreal’s Technoparc site. The project is complex

because of the site’s long and varied contamination history, including a dump that

operated between 1860 and 1966, and hydrocarbon contamination dating back to

the late 1970s.”

158. The Environment Canada investigator speculated that MDDEP is the owner (see

Investigation Report, Appendix 9). See also: Québec Environmental Public Hearings Bureau (Bureau des audiences publiques en environnement–BAPE), L’eau, ressource

à protéger, à partager et à mettre en valeur (Water: a resource to protect, share, and
small section of the bank belongs to the Ministry of Sustainable Development, Environment, and Parks of Québec (Ministère du Développement

durable, de l’Environnement et des Parcs du Québec—MDDEP), while the

rest of the bank up to the Champlain Bridge is also not included in the

land registry. The management of the Bonaventure Expressway, running parallel to the bank, is the responsibility of JCCBI, a federal Crown

corporation.159 Montreal Technoparc (now Saint-Charles Industrial

Park) is located on the other side of the expressway, bordered to the west

by land belonging to JCCBI and the government of Quebec. North of

Technoparc is the former CN railyard, while to the northwest, since

1987, VIA Rail Canada160 has operated a 30-hectare (3.2 million sq. ft.)

rail car maintenance center on land owned by CN (see Figure 3).161

INFORMATION OBTAINED BY THE SECRETARIAT 61

develop) (2000), c. 3, “Les besoins et les attentes des régions” (Regional needs and

expectations), s. 3.6.1 “Le portrait régional” (The regional picture): “The Québec

Ministry of the Environment asserts that the banks of the St. Lawrence along the

Island of Montreal are the most highly disturbed of all such sites in Québec. It also

mentions landfilling of nearly all the floodplains, all the original marshes, and notes

numerous encroachments by parties who did not obtain authorizations or sign

leases for these lands, which are owned by the Government of Québec. These

encroachments are additional to some 1500 official leases signed by the Ministry,

which would like to inventory these encroachments as part of the current overhaul

of the land registry.”

159. See online at <http://www.pjcci.ca/> (date viewed: 14 March 2007).

160. See online at <http://en.wikipedia.org/wiki/VIA_Rail> (date viewed: 7 March

2007).

161. See “VIA Rail Canada – The Montreal Maintenance Centre,” online at <http://

www.wcrr2006.org/PDF/wcrr-via_rail_e.pdf> (date viewed: 6 March 2007).
Figure 3 Current cadastral boundaries162

The 46-hectare (5.2 million sq. ft.) Technoparc site163 was sold to the

city of Montreal in 1989, by the federal government and the Province of

Québec, with no agreement as to which of them was the real owner.

According to the province, the site was still part of the riverbed, owned

by the province and managed by MDDEP,164 while according to the federal government, the site marked the western tip of the Port of Montreal

(federal property).165

62 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

162. DDH Report; SNC-Lavalin Environment, March 2002: Appendix A, Figures A1-

A16; Ministry of Natural Resources, Fauna, and Parks (2005), Cadastral maps

31H05-010-3837 and 31H05-010-3737.

163. Montreal Centre of Excellence in Brownfields Rehabilitation, “Précisions: le nom

du site ‘Technoparc’ et le secteur régional à l’étude,” (Clarification: name of

‘Technoparc’ site and regional sector under study), online at <http://www.cemrs.

qc.ca/francais/bulletin/October/> (date viewed: 16 January 2007).

164. Québec, Position du Québec/Propriétés dans le secteur du Technoparc de Montréal (Québec’s position: properties in the Montreal Technoparc sector), prepared by MDDEP

(25 May 2005): “The backfilled portions of the river are within the purview of the

Québec minister responsible for water resources. Various Québec legislative measures govern the sale by the minister of the backfilled portions of the beds of the government-owned bodies of water and watercourses.”

165. See Appendix 8.
8.2.1 Canada-Montreal Sale

At the time of the Canada-Montreal sale in 1989, section 2, “Federal

Land Management (FLM) Principle,” of chapter 110,”Real Property —

General,” of the Administrative Policy Manual (December 1982) of the

Treasury Board of Canada set out rules governing the management of

federal property. The principle of federal real property management

was as follows:

Departments shall plan their acquisition, use and disposal of lands in a

manner consistent with the principle that federal lands should be managed so as to combine the efficient provision of government services and

the efficient use of federal real property with the achievement of wider

social, economic and environmental objectives.

Policies and administrative mechanisms have been established to put the

principle into effect. They are identified in these chapters by the symbol

FLM in the titles of the articles in which they appear.166

The Treasury Board Advisory Committee on Federal Land Management (TBAC/FLM), which included representatives of the Department of Environment, was at the disposal of the Treasury Board and the

departments, offering them advice when they had questions regarding

potential implications of a real estate transaction.167

Under this policy, development potential was included under the

heading “Factors in Real Property Decision Making: “[D]epartments

should take advantage of new demands and opportunities to exploit the full

development potential of federal real property.”168 Concerning surplus real

property, the policy stipulates: “departments should report real property

surplus to departmental requirements to [the Department of Public Works]

at the earliest opportunity.”169 Under “Wider Objectives,” the policy provides as follows:

INFORMATION OBTAINED BY THE SECRETARIAT 63

166. Treasury Board of Canada, Administrative Policy Manual, c. 110, “Real Property –

General,” s. 2, “Federal Land Management (FLM) Principle,” p. 5 (December 1982)

(hereinafter, “chapter 110”).

167. Ibid., p. 6. In 1997, the Pollution Prevention Bureau of Environment Canada’s Quebec Region published, with the authorization of the Minister of the Environment,

Introductory Guide to Environmental Accounting – Environment and Decision-making:

An Appropriate Accounting, produced by the KPMG consulting group for the Order

of Chartered Accountants of Québec (Ordre des comptables agréés du Québec) and

Environment Canada (Montreal: Public Works and Government Services Canada,

1997).

168. Chapter 110, p. 13.

169. Ibid., p. 14.
Generally, these considerations reflect a large number of policies and programs of many departments of government. Departments should consider

the factors listed hereunder in their analyses of real property transactions. They

should consult the department or provincial or municipal authority having

responsibility and capability in the policy or program area concerned to obtain

advice on current policy, plans and priorities.

Social factors include:

– community life,

– social and cultural character and needs of the community,

– social development plans/programs of the municipality and province,

– heritage implications,

– archaeological values,

– harmony with municipal and provincial policies, plans and priorities,

– local acceptance or resistance,

– minority groups,

– native peoples,

– standard and availability of housing,

– recreation facilities, and

– traffic conditions.

Economic factors include:

– industrial and commercial character and needs of the community,

– economic development policies, plans and priorities of the municipality and province,

– implications for property values and development opportunities,

– employment benefits,

– improvements to services,

– influence on municipal tax structure,

– development of resources associated with the real property,

– agricultural productivity,

– quality and use of land,

– soil and hydrological characteristics,

– energy conservation.

Environmental factors include:

– quality of water,

– quality of air,

64 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
– noise,

– electronic emissions,

– drainage pattern,

– traffic conditions,

– hazardous material, including disposal,

– marshlands, beaches, forests, grasslands,

– waste disposal,

– building density,

– wildlife, fisheries, plant life,

– visual appeal,

– hazard lands,

– natural areas of national significance.170

In Appendix B, “Guidelines for Analysis,” the policy provides:

In analysis leading to real property decisions, the following considerations apply:

[...]

(f) where wider social, economic or environmental factors are of major significance, departments should carry out complementary socio-economic impact analyses using social discount rates. A real discount rate of 10 per cent should be

used. For sensitivity analyses, 5 per cent and 15 per cent should be used.

For further information refer to Treasury Board, Benefit-Cost Analysis Guide,

Ottawa: Minister of Supply and Services, 1978. In many instances, socio-economic impact analyses will have already been carried out as part of the

examination of a program of which the real property transaction is only a

part.

In presenting the results of analyses, factors involving a high degree of risk

or uncertainty and estimates, weightings, assumptions and value judgments to which the results of analyses are sensitive should be highlighted.

The rationale for the selection of discount rates should be provided.171

In the case of the site slated to house Montreal Technoparc, on

1 August 1989, the Montreal Port Corporation sold the federal property

to the city of Montréal for one dollar. In return, the city undertook as

follows:

INFORMATION OBTAINED BY THE SECRETARIAT 65

170. Ibid., pp. 14-15.

171. Ibid., pp. 16-17.
The city of Montréal accepts the property in its current state and expressly

releases Her Majesty the Queen in right of Canada, her representatives

and agents and, more particularly, the Montreal Port Corporation, its

representatives and employees from all liability relating to the property

and the condition of the soil and subsoil on the property and shall hold

them harmless from any claims, demands, actions, proceedings, losses,

fines, or expenses or any other damage resulting from title defects or arising from the condition of the soil or subsoil on the property.172

Thus, not only did the city waive all future claims against the federal government, but also, if the federal government became the respondent to a claim or counterclaim by the Government of Québec, CN,

environmental groups, or anyone else because of contamination originating in Technoparc, the city of Montréal would be bound to hold it

harmless. The Secretariat received no information concerning the application of the FLM principles in the context of this sale.

Over the years, the federal government fine-tuned the environmental aspects of its real property policy. In 1998, this policy provided as

follows:

Policy requirements

[...]

c) Before disposing of real property, departments must ascertain the

environmental condition of the property. Departments must also

determine whether or not remediation is necessary, in consultation

with legal and environmental advisors.

(i) In disposing of property that the department has decided needs

remediation, it may be advantageous to have the party acquiring

the property carry out the remediation. In this case, the department must take steps to require that the acquiring party, as part

of the transaction, carry out the remediation within a reasonable

length of time.173

66 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

172. Deed of sale between the Montreal Port Corporation and the city of Montréal

(1 August 1989), Minute no. 6676 of notary Yvon Delorme, no. 4184333, Montreal

Registration Division, p. 5.

173. Treasury Board of Canada Secretariat, Treasury Board Real Property Environment

Policy (1 June 1998), online at <http://www.tbs-sct.gc.ca/pubs_pol/dcgpubs/

RealProperty/dwnld/enp_e.rtf> (date viewed: 28 March 2007). On 1 November

2006, this policy was replaced by the Directive on the Sale or Transfer of Surplus Real

Property, s. 6.9 of which stipulates: “When the real property is contaminated and the

acquiring party is undertaking the required remediation, custodians shall take

steps to ensure that it is carried out within a reasonable length of time.”
8.2.2 Québec-Montreal Sale

Under the terms of the November 1988 order-in-council authorizing the sale of the Technoparc lands to the city of Montréal, the conditions attaching to the Québec-Montreal sale were to be as follows: the

sale price would be $1 million, from which the city could withhold up to

$300,000 to pay for an environmental site assessment.174 In particular,

the city undertook as follows:

[...]

4. The city shall undertake to take measures in order that any subsequent use of this site, by the city or its successors, be carried on safely,

considering the substances contained in the fill material, in accordance with Ministry of the Environment standards;

5. The city releases the Government of Québec and the Ministry of the

Environment from all liability for the condition of the soil and subsoil

on this site.

[...]175

However, in December 1988, the city contacted the Deputy Minister of the Environment of Québec, seeking assurances on various aspects

of the transaction. The city asked the Ministry to compel CN and VIA

Rail to take charge of managing any contamination found on their properties; not to require the city to treat the groundwater; and, concerning

site remediation, to accept that only free-phase hydrocarbons would be

removed from the site, allowing contaminated soils to remain in place.

Finally, the city sought certain assurances relating to infrastructure and

backfilling of the site.176

The Deputy Minister responded to this request in January 1989.177

Concerning the CN and VIA Rail properties, the Deputy Minister noted:

On this subject, the Ministry has approached VIA Rail and, in the weeks to

come, plans to similarly approach Canadian National and request that

INFORMATION OBTAINED BY THE SECRETARIAT 67

174. Government of Québec, Décret concernant la vente et l’utilisation subséquente des

terrains de l’ancien Adacport (Order-in-council concerning the sale and subsequent

use of the former Adacport lands), D. 1739-88, 23 November 1988, G.O.Q. 1998.II

5869.

175. Ibid.

176. Letter from the Secretary General, Ville de Montréal, to the Deputy Minister of the

Environment of Québec (23 December 1988).

177. Letter from the Deputy Minister of the Environment of Québec to the Secretary

General, Ville de Montréal (23 January 1989).
these companies conduct thorough site assessments for their respective

properties. In addition, the Ministry will ask for the necessary remediation

measures. Moreover, it will be necessary to remove or block the sewer

pipes coming from the CN property, making sure as well to block any

potential source of contamination reaching the site by this pathway from

upstream.178

Under the heading “Contamination of the river,” the letter clarified:

According to the information we have at this stage, concerning the contaminant load to the river, we see no need to adopt measures to recover

and treat the groundwater. However, studies that will be carried out at a

later date will allow for a better assessment of the contaminant load and a

reassessment of the need for action regarding the groundwater.179

On 21 February 1989, the Deputy Minister of the Environment

wrote to the city of Montréal again, in response to certain reservations

expressed by the latter concerning the wording of the groundwaterrelated requirement.180 Under the heading “Water Contamination,” this

letter clarified:

According to the information we have at this stage, concerning the contaminant load to the river, we see no need to implement measures for containing and treating the groundwater.

However, as recommended by ADS Consultants in the assessment carried

out for the city of Montréal (chapter 6.2, recommendation 10), the latter

will have to perform environmental monitoring of the part of the site bordering the river in order to reassess the need for action regarding the

groundwater.

The monitoring plan prepared by the city and approved by the Ministry of

the Environment will basically consist of taking and analyzing groundwater samples. For the Ministry, the current location of groundwater monitoring wells may have to be adjusted as needed. Monitoring will continue

during site development and will continue for several years if the data so

require, so as to assess the effects of mitigation measures (removal or

68 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

178. Ibid.

179. Ibid.

180. Letter from the Deputy Minister of the Environment of Québec to the Secretary

General, Ville de Montréal (21 February 1989).
blocking of sewer pipes and recovery of LNAPLs) as well as possible mitigation measures on the CN and VIA Rail sites, upstream.

Of course, no groundwater treatment will be required before completion

of an assessment of the effects of mitigation measures on the site.

[...]

I also wish to inform you that the requirements stated in this letter and the

letter of 23 January 1989 will not be modified or augmented by the Ministry of the Environment unless new facts (not identified in the site assessment) or new legislative or regulatory provisions force us to do so.181

The deed of sale is dated 1 August 1989.182

8.2.3 CN Site183

Redevelopment of old railyards, including management of environmental aspects,184 is a facet of urban renewal in many cities across

Canada and the United States.185 There are companies that specialize in

buying and redeveloping these properties,186 as well as in insuring

against associated environmental liability.187 Prior to the privatization

of CN in 1995, the federal government transferred certain “strategic”

assets of this Crown corporation — including highly contaminated

INFORMATION OBTAINED BY THE SECRETARIAT 69

181. Ibid.

182. Deed of sale between Her Majesty in Right of Québec and the city of Montréal

(1 August 1989), minute no. 6675 of notary Yvon Delorme, no. 4184333, Montreal

Registration Division.

183. See Figures 2, 5, 6, 7 and 8.

184. Daniel Machalaba, “Local Ties: Decades of Mishandling Hazardous Cargo Leaves

Railroads a Toxic Legacy – Areas Near railyards Face Possible Health Problems,”

Wall Street Journal, 3 February 1999.

185. See, for example, SRA International, Inc., Successful Rail Property Cleanup and Redevelopment – Lessons Learned and Guidance to Get Your Railfields Projects on Track

(prepared for U.S. Environmental Protection Agency, Office of Solid Waste and

Emergency Response/Office of Brownfields Cleanup and Redevelopment) (EPA560-F-05-231, August 2005).

186. See, for example, Cherokee Canada Inc., online at <www.cherokeecanada.com>

(date viewed: 26 February 2007).

187. See, for example, AIG Environmental, “Railroads and Railyards,” online at

<http://www.aigenvironmental.com/environmental/public/envindustries/

0,1340,63-11-335,00.html> (date viewed: 26 February 2007).
properties such as the City of Moncton’s railyard188— to another federal

Crown corporation, Canada Lands Company, whose mandate is to find

new uses for such sites while generating a profit for the federal government (see Figure 4).189 The Pointe-Saint-Charles railyard was not among

the properties so transferred.190

70 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

188. See online at <http://www.clc.ca/en/pr/factsheets/MonctonProperties.pdf>

(date viewed: 26 August 2007).

189. See CN Commercialization Act, S.C. 1995, c. 24 (Bill C-89), “Preliminary Transactions,” s. 6: “The Minister may, at any time while CN is a Crown corporation within

the meaning of section 83 of the Financial Administration Act, direct CN to transfer,

on such terms and conditions, including consideration, if any, as the Minister considers appropriate, such property, including leases, rights, interests and benefits, of

CN as the Minister considers appropriate to the Minister or to any other Minister or

Crown corporation designated by the Governor in Council, and CN shall forthwith

comply with the direction.” See also National Roundtable on the Environment and

the Economy, supra note 188, and Environment Canada, Progress on the Program for

Destruction of Federal Polychlorinated Biphenyls (PCBs), c. 5: “Some federal institutions

decided not to wait for the national PCB disposal contract to be in place, and advised

PWGSC that they would, for financial or technical reasons, contract separately for

the disposal of their wastes. For example, Canada Lands Company Limited, which

in 1995 had assumed responsibility for the disposal of approximately 2,600 tonnes

of PCB-contaminated soil from the clean-up of a former Canadian National Railway

property at Kempt Road in Halifax, Nova Scotia, contracted directly with Cintec

Environnement Inc., a Quebec company, to treat the soil in Quebec to remove the

PCBs. This soil was heavily contaminated with lead and other metals and, therefore,

not suitable for incineration. About 2 tonnes of residual PCBs removed from the soil

were sent to Alberta for disposal. The cost of treating that soil and disposing of

the PCB waste was approximately $1.9 million”; online at Environment Canada

< http://www.ec.gc.ca/wmd-dgd/default.asp?lang=En&n=FF70CABE-1> (last

modified: 15 November 2006).

190. Telephone conversation with the Vice-President, Strategic Acquisitions, Public and

Governmental Affairs, Canada Lands Company (5 October 2006).
Figure 4 Transport, Infrastructure and Communities portfolio191

INFORMATION OBTAINED BY THE SECRETARIAT 71

191. Transport Canada, 2006-2007 Estimates – Report on Plans and Priorities, s. 1.3. See also

Old Port of Montreal Corporation Inc. (Canada Lands Company Limited), Population Affiliation Report: “P.C. decision 2003-2093 designates the Minister of the Environment as the appropriate Minister with respect to the Canada Lands Company

Limited for the purpose of the FAA, effective December 12, 2003,” online at

<http://www.psagency-agencefp.gc.ca/pas-srp/remarks-observations_e.asp?

id=34215> (date viewed: 9 July 2007); Order Designating the Minister of State (Infrastructure and Communities) as Appropriate Minister for the Canada Lands Company Limited for Purposes of the Act, P.C. 2004–872, 20 July 2004: “Her Excellency

the Governor General in Council, on the recommendation of the Prime Minister,

pursuant to paragraph (d) of the definition ‘appropriate Minister’ in section 2 of the

Financial Administration Act, and pursuant to subparagraph (a)(ii) of the definition

‘appropriate Minister’ in section 83(1) of that Act, hereby (a) revokes Order in Council P.C. 2003-2093 of December 12, 2003 (SI/2003–235), and (b) designates the Minister of State to be styled Minister of State (Infrastructure and Communities), a

member of the Queen’s Privy Council for Canada, as the appropriate Minister

for the Canada Lands Company Limited for the purposes of the Financial Administration Act, effective July 20, 2004.” Financial Administration Act, Registration

TR/2004-105.
On 6 September 2006, the CEC Secretariat sent Canada the following question (Appendix 5):

Based on information obtained by the Secretariat, it appears that some

of the contamination found at the Montreal Technoparc comes from adjacent lands, in particular, those lands hydraulically upstream from the

Technoparc used by the CN (Canadian National Railway Company) for railway operations for many years. The Secretariat would like to know

whether the federal government or a crown corporation has any obligation, either under a contract or in some other way, concerning the contamination on the sites in question that is flowing into the groundwater at the

Technoparc and eventually reaching the St. Lawrence River. If so, we

request that you provide details of the origins, nature and extent of this

obligation, and that you provide us with a copy of any related documentation. This will help us create a complete picture of the federal government’s situation vis-à-vis section 36(3) of the Fisheries Act with respect to

deposits coming from the Montreal Technoparc.

On 1 November 2006, Canada sent the Secretariat the following

response:

The properties occupying the former riverbed that form part of the

Technoparc sector are indicated in the cadastral maps submitted to the

CEC. Concerning the question of establishing any obligation of the federal

government or a federal Crown corporation with respect to the groundwater contamination, the sought after response falls into the category of

legal opinion. Legal opinions obtained by the Government of Canada are

protected by lawyer-client privilege and cannot be disclosed.192

Prior to its privatization, CN incorporated a wholly owned subsidiary, AMF Technotransport, Inc., and transferred to it the business

of the Pointe-Saint-Charles shops.193 In 1995, the business was again

transferred, this time by CN and GEC Alsthom Canada, to AMF Technotransport Management, Inc., with an option for Alsthom to purchase the

72 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

192. Appendix 5.

193. See Greg Gormick, “A Rebuilder Reaches Out – Atelier Montreal Facility” (Railway

Age, January 1993), online at <http://www.findarticles.com/p/articles/mi_m

1215/is_n1_v194/ai_13336125> (date viewed: 6 March 2007). See also “CN’s New

Subsidiary: AMF Technotransport – Canadian National Incorporates Subsidiary”

(Railway Age, October 1993), online at <http://www.findarticles.com/p/articles/

mi_m1215/is_n10_v194/ai_14560775> (date viewed: 6 March 2007).
business within three years.194 Subsequently, Alsthom, under its new

name Alstom, leased the Pointe-Saint-Charles shops from CN until 2004

(see Figure 5).195

INFORMATION OBTAINED BY THE SECRETARIAT 73

194. See “GEC Alsthom Canada – Creates AMF Technotransport Management Inc.

with Canadian National” (Railway Age, September 1995), online at <http://www.

findarticles.com/p/articles/mi_m1215/is_n9_v196/ai_17400885> (date viewed:

6 March 2007).

195. See “Alstom Canada is Looking at Moving to Smaller Quarters” (Train Scan –

Canadian Railway News, August 2003), online at <http://www.trainscan.com/

news/scan/s0308/index.html> (date viewed: 6 March 2007); see also Don Strack,

“Locomotive Dealers and Scrappers – Companies Known to Be in the Locomotive

Building, Rebuilding, Resale, and Scrapping Business”:

“Atelier Montréal Facility (AMF), Montréal (Québec)

“AMF Transport

“GEC Alsthom

“Alstom

“Located in the former Canadian National Pointe St. Charles shops in Montreal. The

shops were spun off as a separate corporate venture by May 1992, but still a division

of CN. On September 1, 1993, the shop was changed from being a division of CN

Railway, to being a subsidiary of the CN parent corporation. The name then became

Atelier Montreal Facility Techno Transport, simplified to AMF Transport... During

late 1996, CN sold the AMF buildings, but not the land, to GEC Alsthom Canada.

GEC Alsthom Canada is a Canadian subsidiary of GEC Alsthom of Amsterdam,

which itself is a joint venture between General Electric Company (GEC) of Great

Britain and Alsthom of France. GEC is successor to English Electric, and is not

related to General Electric of the U.S.

“GEC Alsthom changed its name to Alstom in 1998, upon being reorganized as a

publicly traded company. Alstom also operates separate companies in China and

Germany.

“Reporting marks are GCFX, which is registered to Alstom Canada, Inc., Transport.

“Alstom purchased the Hornell, N.Y., facility from MK Rail in 1997, upon that

company’s shutdown. Since then, at this location, Alstom has painted and finished

at least 185 EMD locomotives built for EMD under contract by SuperSteel

Schenectady (SSSI).

“The facility closed in 2004, and the remaining former SP SD45s and SD40T-2s were

being scrapped or sold. (from Greg McDonnell, July 3, 2004).”

“Former SP’s 7343 & 7353 were resold by the scrapper to NRE, as was, apparently,

former SP 7368. During late June 2004, a source noted that all the rails in and out of

the facility had been cut from the outside world; and that PNC 3064 was apparently

the last remaining loco, in an obvious state of being cut up.(from Bruce Mercer, July 3,

2004)”; online at <http://utahrails.net/loconotes/dealers.php> (last modified:

10 December 2006).
Figure 5 Aerial view (towards Technoparc and St. Lawrence River)

of former CN shops in Pointe-Saint-Charles196

In 2005, CN sold a large part of the railyard to Montréal real estate

developers, including the former president of Alstom Canada inc., for

one dollar.197 The buyers planned to develop the site for mixed commercial/residential use, subject to reaching agreement with MDDEP on

required site remediation work.198 In April 2006, Société du Havre de

Montréal published a comprehensive report on the status and future

74 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

196. Société du Havre de Montréal, The Montreal Harbourfront: Final Report and Recommendations (April 2006), p. 34, online at <http://www.havremontreal.qc.ca/en/

publications/havre_rapport_final.htm> (date viewed: 3 May 2007).

197. Mary Lamey, “Developers Buy Portion of Alstom Train Yards for $1,” The Gazette,

25 October 2005.

198. Jan Ravensbergen, “Will Wal-Mart Move In?,” The Gazette, 15 April 2006.
of the Montreal Harbourfront.199 The report includes the following

passage:

Former CN Shops in Point St. Charles

The abandonment of Loto-Québec’s entertainment complex project, along

with the project for a world scale trade fair centre, on the site of the former

CN shops in Point St. Charles, creates a difficult challenge, to say the least,

in regard to the development of this huge property located in the heart of

Point St. Charles.

The SHM recommends:

That the city of Montréal resume, without delay, its discussions with the

designated purchaser, or with CN who is still the owner of this property,

to ensure its development, respecting the rich industrial heritage of the

site while giving due consideration to the need to decontaminate the

soil.200

8.3 Characteristics and Fate of Contamination in Montreal

Technoparc Sector

In Council Resolution 04-05 (Appendix 1), the Council instructed

the Secretariat to prepare a factual record on the subject, inter alia, of the

characteristics and fate of contamination in the Montreal Technoparc

sector. In its investigation report, Environment Canada states that in

order to be able to lay criminal charges under section 36(3) of the Fisheries

Act, one must be able to establish the source and pathway of a substance

before it enters water frequented by fish.201 According to Environment

Canada, this cannot be proved beyond a reasonable doubt in the case at

hand.202

This section of the factual record contains information obtained by

the Secretariat concerning the characteristics and fate of contamination

in the Technoparc sector, including the sources and pathways of substances before they enter the river. Since according to the Compliance

and Enforcement Policy, persons responsible for enforcing section 36(3)

of the Fisheries Act must consider the degree of harm to fish and fish habitat when deciding what action to take in an instance of noncompliance,

this section of the factual record also contains information concerning

INFORMATION OBTAINED BY THE SECRETARIAT 75

199. Ibid.

200. Ibid.

201. See Investigation Report, Appendix 9.

202. Ibid.
measures taken by Environment Canada to prioritize its actions based

on the degree of harm caused to the environment by the contaminants

present in the Technoparc sector.

8.3.1 Contaminant Sources and Pathways

In the submission, the Submitters single out PAHs and PCBs

among the substances that they detected in samples taken along the

river. The deposit of these substances into water frequented by fish is

prohibited under section 36(3) of the Fisheries Act because they are deleterious to fish (see above, s. 6.2.2). On 28 November 2006, the Secretariat

requested a clarification from Canada for, to which Canada replied on 8

January 2007:

Secretariat request:

The Investigation Report (22 April 2003) concludes:

“The investigation is not able, because of its technical and scientific

complexity, to demonstrate and collect the evidence necessary to

allowing for the identification of the source of a specific deleterious

substance and the path it has taken to discharge into the river, while at

the same time eliminating all other possible sources of contamination,

and to connect this trajectory only to the lots that make up the

Technoparc.’

The relevance of these elements, in the context of an investigation

under section 36(3) of the Fisheries Act, is not apparent. Please explain

the relevance of identifying the “source” and the “path” of a substance in proving an offence under section 36(3) of the Fisheries Act.”

Canada’s response:

During an investigation related to a violation of section 36(3) of the

Fisheries Act, the investigator must collect evidence for each element

of the offense. In a prosecution, the Crown must then prove each of

these elements beyond a reasonable doubt. Among them are the identity of the person who causes or allows the deposit, along with the

location where the deposit occurs and the ability of the deleterious

substance to reach water frequented by fish. For these reasons, this

information is relevant to the file.

This subsection presents information gathered by the Secretariat

concerning sources and pathways of PAHs and PCBs in the Technoparc

sector. This information is relevant in considering whether Canada is

76 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
failing to effectively enforce s. 36(3) of the Fisheries Act in connection

with deposits of deleterious substances in the Montreal Technoparc sector.

8.3.1.1 LNAPLs

It has been known to Environment Canada since the 1980s, if not

earlier, that the sector’s subsoil contains floating phase / free-phase

(LNAPL) contaminants,203 such as oils and lubricants, which do not

dissolve in groundwater but float on its surface, contaminating it.204

Since groundwater generally migrates downward, Environment Canada knew that this oily “product” — containing PCBs and PAHs205 —

INFORMATION OBTAINED BY THE SECRETARIAT 77

203. See Canadian Environmental Assessment Agency, Canadian Environmental

Assessment Registry, Notice of Commencement of an Environmental Assessment,

5 Wing Goose Bay Remediation Project: “Prior to remediation of soil and groundwater, it is imperative that the presence of free-product [LNAPLs] be addressed.

Free-product cannot be biologically degraded as it is toxic to most naturally occurring petroleum degrading bacteria, and any chemical treatment would result in

increased mobility of contaminants (e.g., increase in solubility potential of hydrocarbons) and significantly increased contamination of soil and groundwater.

Free-product must be recovered by passive or active means using a combination of

engineered equipment and/or gravity driven directional flow. After free product

removal is complete, additional remediation will be required to manage residual

contamination of soil, sediment, groundwater, and/or surface water, depending on

the specific site characteristics”; online at <http://www.ceaa-acee.gc.ca/050/

Viewer_e.cfm?CEAR_ID=26393&ForceNOC=Y> (date viewed: 24 April 2007).

204. Foratek prepared a report for Environment Canada in 1984 that concluded, on the

subject of the site’s hydrogeology (p. 86): “The overall flow is observed to be eastward in the direction of the St. Lawrence River.” Concerning water quality, it concluded (p. 91): “A summary of the physicochemical analysis results for water

samples taken at piezometers 1 and 2 is presented on the following page (see

Table 5) [not reproduced herein]. They confirm the presence of leachates (high conductivity, large quantities of dissolved matter, high hardness, etc.). This water was

also observed to be contaminated by oils and other byproducts or related products.

No analysis of these heavy hydrocarbons was undertaken. This contamination may

derive from earlier waste and liquid disposal operations or from infiltration of these

products through drainage pipes that come from the CN railyard and cross the

site.” Foratek International Inc., Étude des sites de disposition de déchets solides sur

les terres fédérales au Québec (Study of solid waste disposal sites on federal land in

Québec), Final report – Phase II, submitted to Environment Canada, Québec

Region, Report no. 611, Project no. FFG 83027, March 1984, s. 7.0, “Adacport” [hereinafter, “Foratek Report”].

205. See, for example, Kilder til jordforurening med tjære, herunder benzo(a)pyren i Danmark,

“Summary and conclusions”: “The objective of the report is to identify and assess

possible sources of PAH in soils. PAH profiles for different sources are identified

and profiles in soils differentiated with respect to source as well as to temporal

changes are evaluated. Furthermore, the report considers the possibility of transformations that might produce PAH and identifies other possible indicators for soils
would probably, sooner or later, move downhill and enter the river

(see Figure 6).206

78 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

contaminated with PAH”; online at <http://www2.mst.dk/common/Udgivra

mme/Frame.asp?pg=http://www2.mst.dk/udgiv/publikationer/2002/87-7972-

303-9/html/samfat_eng.htm> (date viewed: 24 April 2007).

206. Foratek Report, s. 7.0, “Adacport.” See also ADS Associés Ltée,Caractérisation du site

et des environs de l’Adacport (Site characterization, vicinity of Adacport), n/d 36-136,

v/d 88F33A, submitted to Ville de Montréal/Public Works Department (November 1988), Part 6, “Conclusions and Recommendations,” pp. 6-1–6-3: “3 – The waste

unit exhibits concentrations exceeding MENVIQ (MDDEP) criterion “C” (criteria

indicating contamination for an industrial use of the site) for several heavy metals,

sulfur, and oils and lubricants and, sporadically, for phenols and PAH. The fill in

the central and eastern portions (near Adacport and the Victoria Bridge) is generally

clean except for the sulfur parameter and, at four (4) of sixteen (16) points sampled,

heavy metals slightly in excess of criterion “C”. Certain sources of contamination

that are either external or not associated with a landfill site are suspected: slag, with

which heavy metals are often associated; probable leaks in storm sewers coming

from the CN railyard; notable presence of oils and lubricants as one approaches the

CN property. 4 – Groundwater contamination is considerable throughout the site

and largely inorganic (Pb) and organic (nitrogen, phenols, mineral oils and lubricants, PAH, and PCB). PCB contamination was observed only at sampling point

FP-17. LNAPLs were also found at FP-17 as well as at FP-26. Lead was found in concentrations in excess of criterion “C” in 20 of the 30 samples [...] 6 – The water table is

located at depths of 4.1-10.6 meters in the waste unit and the general direction of

flow is toward the river, again suggesting upstream sources of contamination. The

flow gradient of the upper water table is generally on the order of 2%. The hydraulic

conductivity ranges from 10-2 to 10-4 cm/s in the waste unit; it is 10-3 to 10-6 cm/s in

the less permeable rock. Estimated flow rates for the waste unit are on the order of

20 meters/year, so that the water recharging the groundwater from the northern

boundary of the site will take an average of 7-8 years to traverse the site. Preferential

pathways for contaminants are suspected along the storm sewers coming from the

CN property. The overall groundwater flow volume for the site is on the order

of 3,000 m3/day. The deposits into the river could potentially be high in lead

(120 kg/year), Cl- (110,000 kg/year), TOC (24,000 kg/year), and oils and lubricants

(900 kg/year). 7 – When these loads are compared to other point sources of effluents

(St-Pierre sewer main and values for a typical petrochemical facility), lead and, to a

lesser extent, phenols, exhibit relatively high loads to the river. For all the other

parameters for which comparative data is available, discharge from the site is relatively low. It should be noted, however, that groundwater migration models for

the site indicate point sources of contaminants (sewer on the site). Furthermore,

concentrations of parameters measured in the river adjacent to the site tend to confirm greater impact from the St-Pierre sewer main than from the site itself. Only benzene concentrations could be clearly attributed to the Adacport site. In that case, a

sewer outlet from the CN site is probably the source.”
Figure 6 Cross-section of site between CN’s Butler Spur and

St. Lawrence River207

In 1990, in preparation for the development of a high-technology

park on the site of the former landfill, the city of Montréal retained the

services of the engineering firm Dessau Inc. to assess the condition and

extent of LNAPLs in the area, study soil and water contamination

around the CN’s sewer pipes (see above, s. 8.1; see also Figures 7 and 8),

and identify the most appropriate remediation methods.208 Dessau Inc.

reached the following conclusion:

The environmental analysis of the CN sewer pipes and LNAPL problem in

the subsoil of the Adacport has allowed for the extent of the contamination to be quantified, for its nature to be determined, for environmental

impacts and risks to be identified and assessed, and for necessary and

sufficient remediation measures to be developed.209

Dessau Inc. arrived at the following conclusions regarding the

amount, nature and trajectory of the LNAPLs, and how they would be

affected by compaction and infrastructure installation work necessary

to develop a high-technology park:

4. The two LNAPL plumes are found at a depth of about 8 meters below

the surface of the ground. Zone FP-17 is circular and its radius is about

INFORMATION OBTAINED BY THE SECRETARIAT 79

207. “Recovering the diesel oil that contaminates a CN rail site in Montreal has yielded

600,000 litres for re-use so far”; “Bioslurping at CN,” Canadian Consulting Engineer,

June/July 2000, p. 35 (hereinafter, “Bioslurping at CN”).

208. Dessau Report, supra note 154, cover page, letter from Executive Vice-President of

Dessau Inc. to Montreal Initiative and Economic Development Commission (Commission d’initiative et de développement économiques de Montréal–CIDEM) (17 December 1990).

209. Ibid., p. 114.
12 meters. The thickness of the oil is less than 2 cm and the volume

may be estimated at about 1,600 liters. This oil was probably stored in

a tank and buried during the final backfilling of the Adacport site. The

PCB concentration of the oil does not exceed the standard of 50 ppm,

so it could be disposed of offsite. Zone FP-26 is ellipsoid with axes of

100 m and 30 m. The thickness of the oil is less than 10 cm with an average of about 5 cm. The volume is estimated at about 11,300 liters. The

PCB concentration of this oil exceeds the standard of 50 ppm, so it cannot be disposed of due to the current moratorium; if removed from

the ground, it would have to be stored for an indefinite period.

5. Given that the layer of oil is relatively thin, that much time has gone

by, and that there are no other sources of oil, the likelihood of LNAPL

migration toward the river is very low. Despite the hydraulic gradient, it is more likely that the movement of the oil has been halted, for

all practical purposes, by the water present in the capillary fringe.

In our opinion, the LNAPLs are in a state of equilibrium in which they

will break down on site. The breakdown will be slowed by the presence of high concentrations of toxic substances. The substances produced by this breakdown will be additional to those associated with

the domestic and industrial waste.

Consequently, under current conditions, the environmental impacts

and risks associated with the LNAPL plumes are infinitesimal compared with those associated with the former landfill site that is now

Adacport.

6. Dynamic compaction of the site will have the effect of raising the level

of the oil and water within the capillary fringes and pushing them

towards the periphery. Subsequently, the oil and water will stabilize

with respect to the new porosity of the capillary fringe. The overall

effect of compaction will therefore be to slightly extend the oil at the

periphery of the plume while facilitating its absorption by the unsaturated soils. Eventually, a new equilibrium will be reached in which

the oil plume will be even thinner, further reducing the likelihood of

migration. Consequently, the dynamic compaction work will not disturb the LNAPLs in any major way and will have no significant

impact.210

In 1997, CN stated:

It is not possible to determine the percentage of hydrocarbons that may

have migrated from the Butler Spur towards Technoparc. A detailed historical review of the use and evolution of the Technoparc site as well as a

80 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

210. Ibid., pp. 115-16.
supplementary assessment of this site and a more detailed piezometry

will first be necessary. It appears that sources of hydrocarbons were present on the Technoparc site. Aerial photos dating from 1963 (Golder,

July 1996) show the presence of large ponds at several points on the

Technoparc site.211

In 1998, the city of Montréal responded:

One cannot minimize the quantity of hydrocarbons that migrated from the

Butler Spur towards Technoparc based on the presence of ponds detected

on aerial photos of the former landfill taken in 1963, differences in the

viscosity and PCB concentration of the hydrocarbons, or the water level

measured at well 91F81-3 to the north of Bell Mobility. On these points,

allow us to comment and put forward several other considerations pointing, on the contrary, to a considerable leakage of hydrocarbons from your

property.

[...]

One cannot use these arguments to claim that there were no other sources

of hydrocarbons on the Technoparc side, but it appears more than likely

that a portion of the free-phase hydrocarbons found underneath

Technoparc comes from your site, especially since they are located

directly downstream from the Butler Spur LNAPL plumes, in the direction of groundwater flow. In light of this information, it is disappointing,

to say the least, to learn of your intention to withdraw CN from participating in any additional assessment and containment work for hydrocarbons

leaking towards the river.212

INFORMATION OBTAINED BY THE SECRETARIAT 81

211. Letter from Assistant Vice President, Environment, CN, to Ville de Montréal, Economic Development Department, Re: Deposit of hydrocarbons into the St. Lawrence River at Pointe St-Charles. Corrective measures – Phase 1 B. Resolution No.

CE9602124 (30 September 1997). See also: Memo from Commissioner, Economic

Development Department, Ville de Montréal, to Assistant Director, Economic

Development Department, Ville de Montréal, Re: AMF characterization study –

Comments and principal conclusions (28 October 1992): “The study plan consisted

of a preliminary characterization of soil and groundwater quality adjacent to the

Butler Spur situated on the eastern boundary of the CN property [...] The ultimate

purpose of this study was to determine all possible pathways by which the contamination could exit the boundaries of the CN property,” p. i; “Measures should be

taken to curtail the progress of the pure phase from the Butler Spur to the St. Lawrence River,” pp. v and vi.

212. Letter from Senior Commissioner, Economic Development Department, Ville

de Montréal, to Assistant Vice President, Environment, CN, Re: Authorization to

install six observation wells along the Butler Spur, on the Technoparc site, and

comments on your letter of 30 September 1997 (27 February 1998).
An article published in Canadian Consulting Engineer in June 2000

contains the following passages:

Diesel must have been seeping into the ground at a Canadian National

Railways site in downtown Montreal at an astonishing rate. So far, cleanup operations on the Butler Spur along the St. Lawrence River have

yielded almost 600,000 litres of the black stuff. Helene Richer, ing. of

Golder Associates, consulting engineer on the project, laughs ruefully

about the fact that they are still sucking up the oil plume: “We thought we

would be finished by now,” she says, “but there is still no end in sight.”

The railyard was used for repairing and refuelling diesel trains for almost

30 years between the 1950s and 1980s. During that time a broken fuel pipeline was pouring diesel into the water table below. To complicate matters,

the site was a municipal landfill for 100 years starting in the middle of the

19th century. The soils are permeable and the water table fluctuates

between 7 and 8.5 metres below the surface.

By 1991, CN had discovered three diesel plumes totalling about 780 metres

long below the rail track, and realized they were leaking downhill to the

edge of the property. The site was too large to contain the plume by slurry

walls or piles physically. Conventional “pump and treat” methods were

also not too promising as they would have involved removing immense

amounts of water.

CN and Golder decided to use “Bioslurping.” The method is also known

by the more scientific but much less picturesque term, Vacuum Enhanced

Recovery, or VER.213

82 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

213. Bioslurping at CN, supra note 207, p. 34. In 1990, Québec adopted the Regulation

respecting petroleum products, R.Q., c. U-1.1, r.1, pursuant to the Act respecting the use

of petroleum products, R.S.Q., c. U-1.1 (now the Act respecting petroleum products and

equipment, R.S.Q., c. P-29.1). MDDEP explains as follows: “In 1990, the Government

of Québec adopted the Regulation respecting petroleum products, which is enforced by

the Ministry of Natural Resources. This regulation provides, inter alia, for verification and replacement by all operators and users, over a ten-year period (1991-2001),

of all unprotected underground steel tanks more than 15 years old containing fuels

and lubricants, as well as all tanks with a capacity greater than 4,000 liters containing fuel oil. This regulation further stipulates that materials contaminated by leaks

from these tanks must be characterized and decontaminated. Finally, it provides

that all owners of underground or aboveground tanks who cease to use these tanks

for more than two years or dismantle them must characterize the land and decontaminate it if necessary”; online at “Politique de protection des sols et de réhabilitation des terrains contaminés” (Soil protection and contaminated site remediation

policy) <http://www.mddep.gouv.qc.ca/sol/terrains/politique/remplacement.

htm> (date viewed: 11 April 2007). In 1997, the federal government adopted theRegistration of Storage Tank Systems for Petroleum Products and Allied Petroleum Products
Figure 7 Extent of diesel plumes and locations of wells on

CN property along Butler Spur (2000)214

It is currently estimated that “the central portion of Technoparc

contains 4-8 million liters of petroleum hydrocarbons containing 1-2

tons of PCBs.”215 For comparison purposes, the volume of an Olympic-size swimming pool (50 m long and 2 m deep) is about 2.5 million

liters.

INFORMATION OBTAINED BY THE SECRETARIAT 83

on Federal Lands and Aboriginal Lands Regulations, SOR/97-10, pursuant to the Canadian Environmental Protection Act, R.S.C. 1985, c. 16 (4th suppl.). Under the Canadian

Environmental Protection Act (s. 207(1)), this regulation applies to Crown corporations as defined in section 83(1) of the Financial Administration Act (R.S.C. 1985,

c. F-11): “‘Crown corporation’ means a parent Crown corporation or a whollyowned subsidiary. “‘Parent Crown corporation’ means a corporation that is wholly

owned directly by the Crown, but does not include a departmental corporation.”

214. Bioslurping at CN, supra note 207, p. 35.

215. Montreal Centre of Excellence in Brownfields Rehabilitation, “Encadrement et

assistance technique dans le choix des technologies pour le traitement des eaux

souterraines du Technoparc de Montréal” (Supervision and technical assistance in

the choice of technologies for groundwater treatment at Montreal Technoparc),

offer of services submitted to Economic Development Canada (Montreal, September 2005), p. 2.
Figure 8 Distribution of LNAPLs on the Technoparc site

(1999-2000)216

As implied by CN, above, it is likely that during the period when

the marsh was being used as a garbage dump, liquid wastes were

dumped there.217 However, several people interviewed by the Secretariat mentioned that it would have been unlikely for the city or independent contractors to send large quantities of oil to the Pointe-Saint-Charles

landfill for disposal because in those days, used oil was reused for other

purposes or sold.218 According to Environment Canada, diesel fuel is

recognized as being a substance that is deleterious to fish.219

In the case of Technoparc, the oil that is surfacing on the shoreline

is contaminated with PCBs. According to Environment Canada:

84 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

216. Ville de Montréal, “LNAPL and groundwater containment and recovery project for

former Adacport – Meeting of Thursday, 26 August 2004, 1:30 p.m. – List of documents given to participants by Ville de Montréal – 2) Distribution of LNAPLs (measures taken in 1999-2000)” (Laboratories Division, June 2004).

217. Dessau Report, supra note 154.

218. Meeting with Ville de Montréal employees (14 March 2006). Telephone conversation with Harold Kenny, former employee of CN’s eastern Canada real estate division (February 2007).

219. Cuillerier, “Enforcement of Canadian Laws,” supra note 136.
[...] the substance, polychlorinated biphenyls, meets all the criteria for

management under Track 1 of the Toxic Substances Management Policy

and it should be virtually eliminated from the environment.220

The Secretariat tried to obtain information on sources of PCBs in

the sector. It obtained the following report, prepared by a former Duty

Officer in the Emergencies Section and later Head of the Inspections and

Investigations Division of Environment Canada’s regional office in

Montreal (now retired), in consultation with his father, a former CN

employee (also retired), who worked for CN for 32 years, of which he

spent 25 working at the different shops and in the railyard in PointeSaint-Charles. This report should not be considered proof of any offence

or any failure to enforce a law. It is a historical contextualization prepared for information purposes by a respected former head of Environment Canada’s law enforcement program (see Guy Martin’s résumé,

Appendix 11), based on his own and his father’s first-hand knowledge of

activities in the Technoparc sector during several decades.

Analysis of the use of PCB-containing products

at CN’s Pointe-Saint-Charles railyard, and potential

contamination of yard and Technoparc

(20 February 2007)221

1.0 Brief comparative analysis of operational activities at CN’s

Pointe-Saint-Charles railyard, Montreal, Québec, with those of the

Paoli Railyard, Paoli, Pennsylvania, United States, and PCB contamination at the latter covered by consent decree # 99-1479 of the

United States Court of Appeals for the Third Circuit, 26 December

2000

You have found information concerning a PCB-contaminated railyard

and you have asked me to comment on this information in light of the

activities carried out at the CN railyard in Pointe-Saint-Charles. Comparison of the two yards points up significant differences, although the rail

transportation-related activities and operations that were carried on there

may be considered similar, even if different in magnitude.

INFORMATION OBTAINED BY THE SECRETARIAT 85

220. See Environment Canada, “Toxic Substances Management Policy – Synopsis,”

online at <http://www.ec.gc.ca/wmd-dgd/default.asp?lang=En&n=97B21DD4-

1&offset=1&toc=show> (date viewed: 20 April 2007).

221. Guy Martin, “Analyse,” supra note 156. [n.b. Indented footnotes are from Mr. Martin’s text.]
1.1 Area and type of operation

1.1.1 Paoli, Pennsylvania Yard

The document referred to above (hereafter called the “decree”) states that

the Paoli yard has an area of operations of 28 acres (11 hectares), including

a repair shop for rolling stock that was in service from 1915 to 1995. During

this period, operations at the Paoli yard consisted of periodic maintenance, repairs, and storage of cars. Considering its location, operations,

and limited size, it was probably a small, secondary railway yard for a

branch line serving the passenger trains of Philadelphia’s northwestern

suburbs. In fact, the Paoli station is located about 20 miles [32 km] from the

Philadelphia station and provides service to commuters and students to

this day.

From the 1950s onward, trolley cars were stored and maintained at the

Paoli yard. These cars used transformers containing dielectric fluids as

an insulator and heat-transfer medium for cooling purposes. The dielectric fluids used at that time were mainly composed of polychlorinated

biphenyls (PCBs). These were preferred for their chemical stability, their

non-corrosivity, and because they were known for being excellent thermal

and insulating agents.

According to the decree, dielectric fluid containing PCBs was spilled during maintenance of the trolley car transformers and also vaporized due to

overheating during operation of these cars. Operations at the Paoli yard

allegedly contaminated the entire property and, with soil erosion, adjacent lots.

1.1.2 CN’s Pointe-Saint-Charles Yard

By comparison, CN’s Pointe-Saint-Charles yard has existed since 1853,

that is, since the beginning of major railway operations in Canada. In its

heyday, nearly 4,000 people worked there. The area of operations is much

bigger than that of Paoli and there are many shops and offices on the premises. To name but a few, there is the main maintenance and car repair

shop, the large thermal power plant, the locomotive shop, the special projects shop, and the administrative office, as well as the yards specifically

adapted to railway activities such as the coach yard. In fact, CN’s PointeSaint-Charles yard housed CN’s largest and oldest railway maintenance

center in Canada. It should be noted that the Pointe-Saint-Charles shop

was also called on to support the war effort (1939-45). It became a tank and

munitions factory, though it did not cease railway-related activities.

CN’s Pointe-Saint-Charles yard witnessed the introduction of the first

steam locomotives as well as the first diesel locomotives, in the early 1950s.

Unfortunately, for more than 125 years, the yard engaged in and was sub86 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
ject to all these activities without much regard for the environment,

expanding its area of operations over its own accumulated garbage. Combining utility and savings resulting from avoided disposal costs for industrial and other wastes, landfilling of the low-lying southeastern portion of

the property actually expanded the operating areas, a common industrial

practice until the 1970’s. What distinguishes the Pointe-Saint-Charles yard

from the Paoli yard is that the former’s activities did not include storage

and maintenance of trolley locomotives or autonomous trolley coaches.

While CN used such pantograph-operated electric trains222 for Montreal’s

northern suburbs, they had to take the tunnel under Mount Royal in order

to carry passengers to the downtown central station. These electric trains

were maintained and stored at the Lazard yard in the Town of Mount

Royal and provided service between central station and Saint-Eustache,

Québec, among other destinations. A trolley locomotive maintenance

shop was built at the Lazard yard around 1910 by Canadian Northern

Railways, one of the companies that later merged to form CN.

1.2 Conclusion

I was given confirmation by a former CN employee at the Pointe-SaintCharles yard that no trolley locomotives or cars were stored, restored,

maintained, or repaired at the Pointe-Saint-Charles yard. CN’s PointeSaint-Charles yard was therefore apparently never contaminated by PCBs

due to the presence of trolley locomotives, as was the case at the Paoli yard.

2.0 Considerations on the use of PCB-containing products at CN’s

Pointe-Saint-Charles yard and its potential contamination

2.1 Historical Data

Consideration of the electrical power needed to operate a large railway

maintenance centre of the size of CN’s Pointe-Saint-Charles yard, in light

of its age, its development over time, and the power of the motors necessary for it to operate suggests installed power of 12,000 volts AC in the

1910s and about 25,000 volts AC in the 1970s, when Hydro-Québec

increased power distribution over its Montreal grid.

It is important to note here that PCBs were introduced into the industry in

the 1930s. They found numerous applications:223

waxes* certain lubricants*

glues* printing inks

INFORMATION OBTAINED BY THE SECRETARIAT 87

222. A pantograph is a device that collects electric current from overhead lines for electric trains or trams. The term derives from the resemblance to pantograph devices

for copying writing and drawings.

223. *: High likelihood of their being present at the Pointe-Saint-Charles yard.
coolants* pesticides*

vacuum pumps (oil)* cutting oil*

paints* carbonless paper*

dust control agents* caulking compound*

plasticizers sealants

fluorescent light ballasts

not to mention electric transformers,* capacitors,* switching devices,*

electromagnets,* etc.

2.2 Installed power and operations

Since this installed power needed to be transformed and regularized,

transformers were required to bring the voltage to 550-600 volts in order to

power the power plant, air compressor batteries, pumps, fans, welders,

overhead cranes, electromagnets, and the whole set of machine tools used

to shape metals for building, repairing, or maintaining various locomotives and cars. Large transformers were needed to lower the voltage while

raising the current to a useful level, along with switches and a large number of capacitors. These enable each of the motors to operate by eliminating electric current fluctuations in the circuits.

Considering the time frame and history of the implementation of PCBcontaining equipment, it is certain that transformers, switches, capacitors,

and electromagnets were being used in the shops. As elsewhere in industrial society, during the years when the toxicity of PCBs was unknown, no

safety measures or special concerns were taken or raised when carrying

out maintenance procedures or managing dielectric fluid or fluid-containing equipment waste. Lubricating oils and others were all mixed together,

regardless of their nature, source, secondary use, or eventual disposal.

Only the commercially publicized advantages were widely known. For

many years, reports on the toxic effects of PCBs, published here and there

in occupational medical journals, were of hardly any interest, much like

workplace health and safety. Some people whose job involved maintenance of electrical equipment even used PCB-containing dielectric fluid

as an arthritis liniment.

It is also important to note that railroad ties and ballast224 were continuously soiled by the lubricants used in the engines and other moving parts.

Before the advent of ball bearings, now used on all moving axles including

the axles of modern railway cars, the cast metal axles moved on metal friction bearings composed of an alloy of malleable metals kept lubricated by

oil-saturated wool waste. A box containing the wool was attached to the

outer face of the wheels, and the wool was lubricated manually at every

88 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

224. Ballast is crushed stone used in a railway bed to support the ties, hold the track in

line, and help drainage.
yard on the route. The friction bearings leaked constantly, all along the

track and in the yards. Over the years, considerable quantities of oil built

up in the ground. According to the information gathered, this lubrication

oil would have been new, not recycled.

2.3 Waste management in the era of environmental unconsciousness

What with the relative absence of environmental concern in the years

before 1970, dielectric fluids were treated similarly to other lubricating oils

from internal combustion engines (locomotives and others) and were disposed of with them or in a manner similar to them. In small businesses and

in industry, it was common and totally accepted to dispose of oils and

other residues by dumping them on the ground near the shop where one

was working.

The same was true for obsolete or irreparable equipment, which was very

often buried on the property or thrown in the trash and sent to the closest

landfill, or sent to the local scrapyard for metal recycling in the case of

transformers and switches. In the case of waste capacitors, due to their

bulk, the most likely means of disposal was burial on site or in the landfill.

Since few railyards had ground covering of any kind, dust control oils

were often sprayed on the dirt paths, cutting down on the number of complaints from employees and neighbors.

In addition, all the buried PCB-containing metal containers (such as transformers, capacitors, and barrels) eventually corroded and leaked their liquid contents into the ground. In the case of capacitors, which contained

a more viscous type of PCB, corrosion made their contents available to

be dissolved by organic solvents or other hydrocarbons present in the

groundwater.

2.4 Inventory of PCB-containing equipment

Around 1977, Environment Canada (EC) embarked on creating a voluntary national inventory of PCB-containing equipment. A majority of

legally registered companies received a questionnaire covering basic corporate data, the identity of the persons responsible for PCB-containing

equipment, the nature of that equipment, and the nameplate data. Since

this was a voluntary program, one cannot be certain of the value or

accuracy of the resulting inventory. The more optimistic EC employees

believed that the inventory’s correspondence to reality was 90%, while

others estimated it at 60-75%.

Subsequently, the inventoried equipment was subject to annual inspection. Only equipment that was demonstrated to have been destroyed was

deleted from the inventory. However, the human resources available

INFORMATION OBTAINED BY THE SECRETARIAT 89
were insufficient to perform the number of annual inspections required to

ensure minimum control of the inventoried equipment.

On several occasions, anonymous information concerning illegal burial of

transformers was received at EC regional offices. In most cases this information was incomplete and did not result in an investigation. The respondents obviously wished to remain anonymous so as to avoid reprisals.

Since no equipment was ever reported as missing from the inventory, one

is led to believe that its accuracy was fair but far from perfect.

The inventory data for CN’s Pointe-Saint-Charles yard is perhaps still

available at EC’s Montreal regional office. Such data was always considered confidential and was shared only with the local fire department upon

request.

2.5 Conclusion

Given the very large quantity of diesel fuel that was spilled on the ground

through the innumerable leaks that occurred over the years, as well as

other oils dumped on the ground, one may assume that the subsoil of CN’s

Pointe-Saint-Charles yard contained solvents that solubilized the captive

viscous PCBs and liquid PCBs and allowed them to be transported or to

migrate through the LNAPLs and/or dissolved phases of the water table.

Unfortunately, lab results are unavailable for samples of liquid taken at

the groundwater monitoring wells installed by CN on the southeastern

border of the yard, which would be necessary to determine whether

PCBs migrated from the property in question to the dump that became

Technoparc and from there into the St. Lawrence River.

3.0 Leakage of PCBs into the St. Lawrence River from Technoparc

3.1 Operation and management of the Pointe-Saint-Charles dump

by the city of Montréal

Along the same lines, management of the dump under study also lacked

guidelines and operational standards for many years. All manner of residential, commercial, and industrial waste was mixed and dumped there

without limitation. Often, fires were burning all over the dump while

scrap dealers scavenged for metal, oblivious to the risks, the traffic of

trucks carrying the trash, and the heavy machinery compacting and

grading the garbage. All the garbage dumps of the modern world used to

operate (and some of them still do) under similar, unenvironmental conditions.

All imaginable types of waste produced in the city of Montréal were

brought there. This obviously included residential waste, demolition

debris, biomedical waste from hospitals and clinics, organic and inorganic

commercial and industrial waste, meaning the various PCBs in all their

forms and concentrations and for all the applications mentioned above in

90 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
2.1, as well as others as bizarre as Askarel225-containing domestic space

heaters and even kitchen stoves, such as those manufactured by De

Longhi. Also to be found are pre-1970s fabric-coated electric wires on

which the insulator is made of PCB-soaked paper. It should also be

remembered that there was no curbside recycling at the time, and so there

is no doubt that paints, bases, acids, oxidizing agents, corrosive agents,

flammable liquids, organic peroxides, and other toxic substances ended

up in garbage dumps.

To put it succinctly, PCBs were everywhere. They were an integral part of

everyday life and, unfortunately, were among the waste delivered to

North America’s garbage dumps day in and day out.

Following the reasoning in part 2.0 of this report, all PCB-containing containers, equipment, and products buried in the dump under study were

subject to corrosion and the influence of fluctuations in the water table.

The water table in the part of the dump located on the floodplain was also

subject to changes in water levels in the river. The environment was

conducive to accelerated corrosion and these containers and products

unquestionably leaked their contents at some point.

3.2 Conclusion

Considering the porous mass of waste and the fluctuating level of the

LNAPL plume containing solvents such as diesel fuel which very likely

migrated from the CN property over the years, and considering the action

of time on both the corrosion of containers and the dissolution of various

PCBs by the solvents, it is not surprising to find PCBs in the samples taken

from the St. Lawrence River along the Bonaventure Expressway at the foot

of the Victoria Bridge.

An Environment Canada emergency operations officer suggested

the following hypothesis in a pollution incident report of 31 October

1991, shortly after hydrocarbons were noticed on the bank of the St.

Lawrence River:

It is possible that diesel fuel from the CN and VIA properties is solubilizing various contaminants found in Montreal’s former sanitary landfill

site, including PCBs, and ending up in the river after passing through the

Bonaventure Expressway lands.226

INFORMATION OBTAINED BY THE SECRETARIAT 91

225. Askarel is the brand name of a PCB often used as dielectric fluid, used here as a

heat-transfer medium. Most Askarels used in transformers are a mixture containing

60-70% PCBs and 30-40% chlorinated benzenes (mainly tri- and tetrachlorobenzenes).

226. Environment Canada, EPS/Montréal, Pollution Incident Report, File: 4461-2/M,

date and time of the accident: 9 August 1991; source: unknown; location:

ADACport; quantity: undetermined; ongoing seepage.
8.3.1.2 Groundwater

Groundwater in the Technoparc sector has been polluted by contact with petroleum hydrocarbons, contaminated soil, and residential

and industrial waste.227 According to section 36(3) of the Fisheries Act, a

substance (in this case groundwater) is a deleterious substance if it is

toxic to fish.228 The Secretariat has gathered information concerning the

sector’s groundwater.

The Fisheries Act gives inspectors the power to take samples and

conduct tests on substances where they have reasonable grounds to

believe that the operation of an enterprise is likely to result in the deposit

of a deleterious substance in water frequented by fish, or in any other

place if there is a risk that the deleterious substance in question or any

other deleterious substance that results from its deposit will enter the

waters (s. 38(3)).

In the case of the hydrocarbons resurfacing near Technoparc, in

1991, Environment Canada took LNAPL samples on the banks, on the

Technoparc and VIA Rail lands, and at the CN shops.229 The oil was analyzed for its PCB and metals content.230 At each site the oil was found to

be diesel.231 The groundwater was not analyzed, nor were biological

tests conducted to establish its toxic potential.232

Regarding groundwater at the Technoparc, the City of Montréal

stated in 1999:

Approximately 23 environmental studies on groundwater contamination

at Technoparc have been carried out since 1988. The studies have provided information primarily on the geological and hydrogeological environment, the behavior and characteristics of the LNAPLs, and the quality

of the groundwater. About 300 samples (test trenches and boreholes) were

taken on the Technoparc site, the Bonaventure Expressway, and the banks

of the St. Lawrence River. Approximately 70 wells were drilled, 37 of

which are still in operation. In addition, several hundred chemical analyses were conducted on groundwater, river water, and LNAPL samples.233

92 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

227. See Memorandum, Appendix 8.

228. See Canadian Water and Wastewater Association, “Provincial/Territorial Regulatory Instruments and the Fisheries Act of Canada” (26 May 2003), online at <http://

www.cwwa.ca/pdf_files/position_ccme.PDF> (date viewed: 24 April 2007).

229. Environment Canada Response to CEC Request for Information, Appendix 59.

230. Ibid.

231. Ibid., Appendix 58.

232. Ibid., Appendix 59.

233. Québec, Programme de réhabilitation des terrains contaminés (Urban contaminated

sites rehabilitation program), Financial aid eligibility form: general information (29

October 1999, revised 16 November 1999).
Figure 9 Groundwater sampling wells installed at the

Technoparc site, 1999234

Environment Canada stated that the Ministry learned of the potential toxicity of the groundwater at Technoparc in March 2002.235 The

toxicity of the groundwater was confirmed in November 2002,236 based

on samples taken by the City of Montreal and provided to Environment

Canada on a voluntary basis for testing.237

INFORMATION OBTAINED BY THE SECRETARIAT 93

234. Ville de Montréal, “LNAPL and groundwater containment and recovery project for

former Adacport – Meeting of Thursday, 26 August 2004, 1:30 p.m. – List of documents given to participants by Ville de Montréal – 1) Average thickness of hydrocarbons (LNAPL plumes) and frequency of appearance between October 1999

and January 2002; Figure 5.6 from SNC-Lavalin Environment Inc., Caractérisation

environnementale complémentaire (volets 1, 2 et 3) (Complementary Environmental

Assessment (phases 1, 2 and 3)), SLEI Report. It should be noted that these monitoring wells can also be used to take groundwater samples; see Environment Canada

Response to CEC Request for Information, Appendix 30, p. 3.

235. See section 8.7 below, where it is indicated in the response to question 7.5 that “Environment Canada only learned of the potential toxicity of the groundwater in March

2002. The sampling campaign conducted by the City of Montréal in the summer of

2002 and the results obtained from the bioassays confirmed that the groundwater

was toxic.”

236. Ibid.

237. On 28 November 2006, the Secretariat asked Canada the following question: “The

memorandum [Appendix 8 of the factual record] refers to the results of analyses

submitted to Environment Canada by the complainants in April 2002, while the

investigation chronology mentions a sampling campaign led by Environment Canada in the summer of 2002, the latter of which detected the presence of toxic groundwater near the shore of the St. Lawrence River. Reading section 36(3) of the Fisheries

Act(and the definitions that appear in section 34 of the Act), it would appear that the

evidence of the flow of toxic groundwater towards the river allows for laying

charges against the owner of the land from which this groundwater flows, if the
In 1997, CN completed installation of a system to recover LNAPLs

along the southern boundary of its property (Butler Spur). The new system skimmed off the LNAPLs for offsite disposal. PAH-contaminated

groundwater from the property is channeled to the City of Montréal’s

sewer system.238

In 1998, Environment Canada proposed a “biobarrier” project

to contain the free- and dissolved-phase contaminants (LNAPLs and

groundwater) leaking out of Technoparc toward the St. Lawrence

River.239 There was no follow-up to this proposal at the time.240 The Fish94 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

owner allows the discharge to continue. Is this correct?” On 8 January 2007, Canada

responded: “First, the sampling campaign mentioned in the previous paragraph

was carried out by the City of Montréal and not by Environment Canada. Environment Canada only carried out the toxicity analyses of the samples.

“To respond to the question, the recommendation of Environment Canada to the

Attorney General of Canada to prosecute an alleged violator depends on several

facts that must be proved beyond a reasonable doubt. The decision to recommend

prosecution also depends on the criteria set out in the ‘Compliance and Enforcement Policy.’ Finally, the decision to prosecute falls to the Attorney General of Canada, who bases that decision on two principal criteria: sufficiency of the evidence,

and public interest.” See also Ville de Montréal, Meeting of Technoparc technical

committee (Environment Canada/Québec Ministry of the Environment (MENV)/

Ville de Montréal) to clarify groundwater toxicity assessment protocol (13 June

2002).

238. Letter from Assistant Vice-President, Environment, CN, to Ville de Montréal, Economic Development Department, Re: Deposit of hydrocarbons into the St. Lawrence River at Pointe St-Charles. Corrective measures – Phase 1 B. Resolution No.

CE9602124 (30 September 1997): “The Règlement sur le rejet des eaux usées dans les

ouvrages d’assainissement et dans les cours d’eau et sur la délégation de son application

[By-law respecting discharge of wastewater into sanitation works and waterways

and respecting delegation of its enforcement], adopted by the Communauté

métropolitaine de Montréal (2001-09, in force 1 January 2002), applicable on the territory of Ville de Montréal, includes groundwater, stormwater, and surface water in

its definition of wastewater (Article 1(e)) and provides (Article 6) that wastewater

not collected in the sewer system of the Communauté must be directed to and

treated in a wastewater treatment plant whose effluent complies with the discharge

standards set by the by-law for a stormwater system (set out in Article 11). This

bylaw does not set discharge standards for PAHs.” See also Appendix 6.

239. See Appendix 9, “Investigation Report”: “On 26 February 1998, [name withheld],

engineer, and [name withheld], principal consultant of the Intervention and

Restoration section of Environment Canada’s Quebec Region Technology and

Restoration division, submitted a report on the use of “biobarriers” to biodegrade

hydrocarbons and recalcitrant organochlorines contaminating the aquifer at the

ADACport. The project planned for representative samples at strategic locations

along the Technoparc waterfront to determine the amount of contamination from

floating and dissolved phases, with a view to making recommendations concerning

the installation of a watertight barrier as well as the recovery and treatment of the

hydrocarbons. There was no follow-up to this project at the time.”

240. Ibid.
eries Act provides that inspectors may take corrective measures or

require them to be taken by the owner or the person who caused or contributed to the causation of the deposit of a substance into water frequented by fish [s. 38(6)], under certain conditions.241 No such direction

was issued in the case of Technoparc.242

The Compliance and Enforcement Policy states: “Enforcement

personnel aim to achieve consistency in their responses to alleged violations. Accordingly, they will consider how similar situations in Canada

are being or have been handled when deciding what enforcement action

to take.” Montreal’s wastewater treatment plant is located downstream

from the Technoparc, on the eastern tip of the Island of Montreal. Effluent from the treatment plant contains PCBs and PAHs, the parameters of

concern in the Technoparc submission. Both locations are significant

sources of deposits of deleterious substances to the river. In 1999,

two St. Lawrence Centre (Environment Canada) employees and two

MDDEP employees published the results of a study titled Composition of

PCBs and PAHs in the Montréal Urban Community Wastewater and in the

Surface Water of the St. Lawrence River (Canada).243 The paper indicates

that the PCB and PAH concentrations found in the river water upstream

of the City of Montréal’s wastewater treatment plant were lower than

those found in the effluent of the wastewater treatment plant after treatment.244 The authors conclude that atmospheric deposition represents

INFORMATION OBTAINED BY THE SECRETARIAT 95

241. Section 38(9)(b) of the Fisheries Act allows the government to make regulations governing the exercise of this power. No such regulations have been adopted.

242. Environment Canada Response to CEC Request for Information, p. 5.

243. Thanh-Thao Pham, Suzie Proulx, Charles Brochu and Serge Moore, “Composition

of PCBs and PAHs in the Montréal Urban Community Wastewater and in the

Surface Water of the St. Lawrence River (Canada)” (1999) 111Water, Air, and Soil Pollution 251-70 (hereinafter, “Thanh-Thao Pham et al.”). See also Bernard Daboval et

al., “Évaluation de la toxicité des effluents des stations d’épuration municipales du

Québec” (Toxicity assessment of effluent from Québec municipal wastewater treatment plants), Progress Report, Ministry of the Environment and Wildlife (Ministère

de l’Environnement et de la Faune) and Environment Canada (July 1998).

244. Thanh-Thao Pham et al., p. 256. See also Montreal Regional Environment Council

(Conseil régional de l’environnement de Montréal), Brief on water management in Montreal and Québec (9 November 1999), s. 2, “La contamination de l’eau” (Water pollution), “Le traitement des eaux usées” (Wastewater treatment), p. 11: “To date,

effluents from Quebec wastewater treatment plants do not have to meet any standards because the Ministry of the Environment and Wildlife has yet to adopt the

regulations regarding the use of municipal sanitation works (R-200). Municipalities

are therefore not obliged to comply with environmental discharge objectives.”

See also Canadian Council of Ministers of the Environment, Review of Existing

Municipal Wastewater Effluent (MWWE) Regulatory Structures in Canada

(Marbek Resource Consultants, May 2005), Executive Summary, p. vi: “The federal

government has significant regulatory involvement with respect to release of water

to the environment through the FA [Fisheries Act]. The FA does not have a regulation
the principal source of PCBs in the river’s surface water;245 and that the

PAH profile in the effluent from the wastewater treatment plant is

different from that observed in the surface water of the river upstream

of the effluent outfall.

The Compliance and Enforcement Policy states that the seriousness of the damage or potential damage to fish habitat, the fishery

resource, or the risks associated with the human use of fish is among the

factors to be considered in assessing the nature of an alleged violation.

The study authors conclude that the PCB and PAH concentrations in the

effluent plume from the city’s wastewater treatment plant become similar to background levels at distances of 8.5 and 4 km, respectively, downstream of the plant, while the plume does not become completely diluted

by the river water until 11 km downstream of the plant.246Regarding the

river water adjacent to Technoparc, the Environment Canada investigator noted in 2003:

The characterization of the river water opposite the Technoparc showed

that concentrations were below applicable surface water quality criteria

and detection limits, and that there was no detectible increase compared

with the control stations upstream from the Technoparc.247

This information is relevant to considering whether Canada is failing to effectively enforce s. 36(3) of the Fisheries Act in regard to alleged

deposits of deleterious substances in the Montreal Technoparc sector.

In 2004, CN published a notice of contamination (Appendix 6) in

the land registry, as required by Québec’s Environment Quality Act. The

notice states that the St. Lawrence River is not a potential receptor of

groundwater from the railyard because this water is discharged into the

City of Montréal sewer. The MDDEP inventory of contaminated sites248

has no information concerning groundwater at the railyard.249 How96 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

defining acceptable discharges for the municipal wastewater sector and so the

broad restrictions on release of deleterious substances apply to wastewater discharges. This is a significant issue for the sector since the FA provisions are not necessarily satisfied by conditions for effluent release as identified in the facility permit

from the province or Water Board. Provinces and Yukon Territory implicitly or

explicitly incorporate the concept of mixing zones (also called initial dilution areas)

into their release policy and/or permits.”

245. Thanh-Thao Pham et al., p. 267.

246. Ibid., p. 269.

247. Appendix 9, “Investigation Report,” section 3.0, “Analysis.”

248. See online at <http://www.mddep.gouv.qc.ca/sol/terrains/terrainscontamines/resultats.asp> (File name: Alstom; Municipality: Montreal. Information was current on 30 October 2006).

249. Ibid.
ever, the relevant column of the inventory refers to a note indicating that

information regarding this land is subject to protection under the Act

Respecting Access to Documents Held by Public Bodies and the Protection of

Personal Information.250

In 2004, City of Montréal consultants prepared invitations to tender for a system that would include the following: construction of a 1.5

km-long bentonite-cement wall, to be anchored in the bedrock along the

southern boundary of Technoparc; collection of groundwater upstream

of the wall and treatment thereof by an oil separator; offsite disposal of

the recovered oil in accordance with hazardous waste disposal standards; discharge of the toxic groundwater into the City of Montréal

sewer without additional pre-treatment.251

In 2005, Tecsult Inc. submitted a report to JCCBI containing information and recommendations concerning groundwater in three sectors:

the land owned by JCCBI west of Technoparc (A), the Bonaventure

Expressway, south of Technoparc (B), and Technoparc itself (C).252

According to Tecsult, it is noteworthy that the groundwater in sector A is

similar to that in sector C, though sector A does not contain LNAPLs. In

both sectors, ammonia nitrogen contributes significantly to making the

groundwater toxic.253

INFORMATION OBTAINED BY THE SECRETARIAT 97

250. Ibid. See, for example, Canadian National Railway Co. v. Canada (Attorney General),

2002 FCT 974, at 16: “To summarize, each year the plaintiff prepares a list of

non-railway assets which it has sold during the preceding year and submits it to

Transport Canada. The duty to prepare and forward such a list was imposed on the

plaintiff under an agreement made at the time the plaintiff was privatized. Transport Canada received an application for disclosure of this list for 1996 and 1997, and

denied that application when the plaintiff intervened. The originator of the application filed a complaint with the Information Commissioner, who in turn contacted

Transport Canada. Transport Canada subsequently said it was prepared to disclose

the content of the list for the years in question. The reasons for this decision included

the fact that an employee of the plaintiff had previously agreed to disclosure of the

information, as well as the fact that the information sought was available to the public as it was listed in the registry offices of the various provinces. The parties agreed

that the issue concerned the application of the exemptions set out in section 19 and

sections 20(1)(b), (c) and (d) of the [Access to Information] Act.”

251. SLEI, “Projet d’interception et de récupération des hydrocarbures au site de l’ancien

Adacport (Hydrocarbon containment and recovery project for former Adacport

site), Tendering document, Ville de Montréal/file 9911,” cited in Tecsult Inc., “Pont

Champlain et Autoroute Bonaventure – Étude de faisabilité – Confinement des contaminants – Terrains des sections 2, 11 et 12 (2005) – Contrat 60621” (Champlain

Bridge and Bonaventure Expressway – Feasibility study – Containment of contaminants – Lots in sections 2, 11, and 12 (2005) – Contract 60621), report prepared for

JCCBI (July 2005) (hereinafter, “Tecsult Report”), p. 10-1.

252. Tecsult Report.

253. Ibid., pp. 8-4, 10-4.
In its report, Tecsult commented as follows. Even if technically, the

groundwater in sectors A and C meets the City’s sewer discharge standards (as they don’t contain a standard for ammonia nitrogen), the City’s

treatment system is nonetheless not designed to remove ammonia nitrogen from effluent.254 Therefore, unless the groundwater is treated on-site,

the ammonia nitrogen will still be released into the river, only at a different location and in much less toxic concentrations,255 given the large dilution factor attributable to the immense volume of water flowing through

the City’s sewer system.256 Furthermore, even if the overall quantity of

ammonia nitrogen discharged to the river from the Technoparc sector is

negligible,257 a decision to channel the sector’s groundwater to the city

sewer system without pre-treatment could meet with the disapproval of

government authorities and the public.258 Finally, although the City’s

wastewater treatment plant is not designed to remove heavy metals such

as zinc from the groundwater of the sectors under study,259 a large part of

these would be removed with the decantation sludge, since the metals in

the groundwater are in particulate form.260

Tecsult’s recommendation to JCCBI was therefore to pre-treat the

groundwater from sector A by means of a biological process that transforms ammonia nitrogen into less-toxic nitrates, while removing the

zinc, lead, and other trace metals before discharge into the sewer.261

Tecsult also noted the benefits of mounting a comprehensive project

covering all three sectors (A, B and C), to take advantage of economies of

scale and avoid sections of the shore being left “uncovered”, leaking

contaminated groundwater into the river.262 Finally, Tecsult noted that it

would make sense to work as close as possible to the shore in order to

minimize the amount of contaminated groundwater discharging to the

river.263 However, this would be difficult as regards traffic on the

Bonaventure Expressway, since several lanes would need to be closed

for a prolonged period.264

In 2006, studies were carried out as part of a Montreal Centre of

Excellence in Brownfields Rehabilitation (MCEBR) project to determine

98 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

254. Ibid., p. 7-7.

255. Ibid., p. 8-4.

256. Ibid.

257. Ibid.

258. Ibid., p. 7-7.

259. Ibid., p. 8-4.

260. Ibid.

261. Ibid., p. 8-7.

262. Ibid., p. 12-9.

263. Ibid., p. 10-4.

264. Ibid.
the principal cause or causes of groundwater toxicity in the Technoparc

sector. Methods approved for the purpose of enforcing s. 36(3) of the

Fisheries Act (rainbow trout tests) were used.265 This approach is consistent with recommendations contained in Environment Canada’s Guideline for the Release of Ammonia Dissolved in Water Found in Wastewater

Effluents, which notifies owners of wastewater systems releasing 5,000

m3 or more per day of effluent into surface water, based on an annual

average, that the federal government intends to regulate dissolved

ammonia deposits under the Fisheries Act. This guideline directs system

owners to consider the following factors, among others:

To ensure that the overall risk to the environment or human health is

reduced, owners of wastewater systems should consider actions that

reduce or eliminate risks posed by other substances that may be found in

municipal wastewater effluent, in particular the following substances

which are specified in Schedule 1 of the Act:

(a) nonylphenol and its ethoxylates,

(b) effluents from textile mills that use wet processing,

(c) mercury,

(d) lead,

(e) hexavalent chromium compounds,

(f) inorganic cadmium compounds,

(g) inorganic arsenic compounds,

(h) inorganic chloramines,

(i) chlorinated wastewater effluents.

INFORMATION OBTAINED BY THE SECRETARIAT 99

265. MCEBR, “Secteur régional du Technoparc de Montréal – Développement et adaptation de technologies de traitement des eaux souterraines” (Montreal Technoparc

regional sector – Development and adaptation of groundwater treatment technologies) (2006), 1 Le Défricheur no 6: “Ecotoxicology experts helping out – With a $1.56

million grant from Canada Economic Development (CED), the Montreal Centre of

Excellence in Brownfields Rehabilitation (MCEBR) is identifying the best technological solutions for treating toxic groundwater in the Technoparc sector. MCEBR

mandated the Canadian firm Stantec, from Guelph, Ontario to conduct ecotoxicological analyses of groundwater samples taken from the three zones under study.”

See also Decisioneering: “For Environment Canada, Crystal Ball is a Crucial Tool for

Chemical Risk Assessment. APPLICATION: Environmental risk assessment of

chemicals. SUMMARY: Environment Canada applied Crystal Ball in an investigation of the effects of ammonia in aquatic environments. Crystal Ball was used to generate distributions for the raw hydrological and effluent data and to combine these

distributions to generate a set of hypothetical river conditions for a plume model.
8.3.2 Setting Priorities Based on Degree of Harm to the Environment

Under the Compliance and Enforcement Policy, when determining

the appropriate action to take in respect of an alleged violation of section

36(3) of the Fisheries Act, one must consider the nature of the violation,

including any harm to fish and fish habitat.266 The Technoparc site has

been studied and classified in the context of federal and provincial programs for the remediation of former industrial landfills. This site was also

inventoried as part of a joint federal-provincial initiative seeking to identify and address the main sources of pollution on the St. Lawrence River.

Priorities for action were determined on the basis of impacts on flora and

fauna, but also as a function of loss of uses associated with the receiving

environment (drinking water, fishing, leisure activities, etc.).267

This section of the factual record presents information gathered by

the Secretariat concerning steps taken by Canada to establish priorities

for action in regard to the Technoparc sector as a function of the relative

risk posed by the properties in the sector to human health and the local

environment, as compared to risks posed by other former garbage

dumps on federal land in Quebec and other contaminated sites along

this section of the St. Lawrence river. The information presented below is

relevant to considering whether Canada has failed to effectively enforce

s. 36(3) of the Fisheries Act in connection with deposits of deleterious

substances in the Montreal Technoparc sector.

8.3.2.1 Contaminated Sites Management

In the 1980s, when the effects of contamination in Love Canal (a

residential development in Buffalo, New York built on a former chemical industry landfill) were making world news,268 the Government of

100 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

RESULTS: With the aid of Crystal Ball, Environment Canada has determined that

ammonia released in large quantities under some river conditions is toxic to aquatic

life. A risk management process will be developed to discuss reduction strategies

with Canadian municipalities.” Online at <http://www.decisioneering.com/stories/env-canada.html> (date viewed: 11 April 2007). See also Ville de Montréal,

Ninth meeting of technical committee (8 September 2005), Minutes, p. 2: “Point

5 – Study on the relationship between groundwater toxicity and various physicochemical parameters (Environment Canada).”

266. Compliance and Enforcement Policy, p. 18.

267. See Environment Canada, “Canadian Water Quality Guidelines,” online at

Environment Canada <http://www.ec.gc.ca/ceqg-rcqe/English/Ceqg/Water/

default.cfm> (last modified: 1 March 2004).

268. See Love Canal – Documents, online at <http://www.epa.gov/history/topics/

lovecanal/index.htm> (date viewed: 9 March 2007). See also Sophie Lavallée, La

réhabilitation des terrains contaminés et le droit québécois: un droit négocié (Brownfields
Canada and the Government of Québec both included the “Adacport”

site, i.e., Technoparc, in their respective inventories of former landfills.

In 1983, Québec created the Group for the Study and Remediation of

Hazardous Waste Disposal Sites (Groupe d’étude et de restauration des

lieux d’élimination de déchets dangereux—GERLED) and mandated it to

inventory and assess all sites in the province of Québec that had definitely or probably received industrial wastes.269 GERLED opened its

Adacport file (no. 09-9-62) in 1988,270 the same year Québec published its

new contaminated sites remediation policy.271 The Adacport site was

listed as a class II site, defined as:

A site posing a moderate risk to the environment or a low potential risk to

public health. The site must have received a score of between 50 and 69

points under the National Classification System for Contaminated Sites

(NCSCS). The NCSCS standard was developed by the Canadian Council

of Ministers of the Environment (CCME).272

The GERLED inventory contains the following information (dated

March 1991) concerning the site:

The water table is located at a depth of over four meters and flows towards

the St. Lawrence River. The presence of contaminants in the groundwater

INFORMATION OBTAINED BY THE SECRETARIAT 101

remediation and Québec law: a negotiated law) (Cowansville: Yvon Blais, 2004),

p. 208. Thomas H. Fletcher, From Love Canal to Environmental Justice – The Politics of

Hazardous Waste on the Canada-U.S. Border (Peterborough, ON: Broadview Press,

2003); Sierra Club of Canada & MiningWatch Canada, “TOXICanada: 13 Good Reasons to Establish a Clean Canada Fund” (2001); and Pollution Probe, “Niagara, A

River To Save” (1999).

269. Québec, Inventaire des lieux d’élimination de résidus industriels GERLED – Évolution

depuis 1983 et état actuel(GERLED index of industrial waste disposal sites – Developments since 1983 and current status) (Québec City: Les Publications du Québec,

1998) (hereinafter, “GERLED inventory”), p. 1: “It was at the end of the 1970s that

the twin problems of disposal of industrial wastes (then referred to as hazardous

wastes) and contaminated soils came to the fore via two spectacular cases: Love

Canal in the United States and Lekkerkerk in the Netherlands [...] In Québec, the

massive spills of oily wastes at LaSalle Coke and in the settling lagoons at Ville

Mercier had a trigger effect in the early 1980s.”

270. The Technoparc site (i.e., the former Adacport site) is now indexed in MDDEP’s

inventory of soil and industrial waste dumps under file no. 7610-06-01-0191200.

271. Cases such as the construction of housing on a former landfill in the City of LaSalle

made the adoption of this policy necessary in that they underlined the need for

guidelines on the enforcement of the Act; see Sophie Lavallée, “Petite histoire de la

Politique de 1998” (Brief history of the 1998 policy), in La réhabilitation des terrains

contaminés et le droit québécois: un droit négocié (Cowansville: Yvon Blais, 2004),

pp. 208 et seq.

272. MDDEP, Répertoire des dépôts de sols et de résidus industriels (Directory of soil

deposits and industrial wastes), file no. 7610-06-01-0191200 (former Adacport site/

Technoparc). See also GERLED inventory, p. 17.
represents a threat to the quality of the river water and sediments, which

are in close proximity. Public health in the vicinity of the site is not threatened by groundwater contamination, as the groundwater is not utilized

locally for human consumption. The nearest downstream intake of drinking water from the St. Lawrence is in Lavaltrie, several dozen kilometers

from the Adacport site. Consequently, the former Adacport site is a class II

site.

In 1984, the federal government conducted a preliminary study of

solid waste disposal sites on federal lands in Québec, including the

Adacport site.273 Regarding the Adacport site, the consultant’s report

concluded that a more detailed study was required “in order to define

precisely the nature and degree of impacts [...] on the environment.”274

It also made the following recommendations:

Based on the results obtained and the intended future use of the site, a

site management regime should be envisaged, which would include a

program to monitor the parameters influencing the quality of the environment (water, gas, subsidence...) and, if necessary, containment or mitigation measures. [...]

Finally, we recommend avoiding any works or construction likely to modify present conditions of activity on the site—such as additional backfilling in the northern part of the site, which contributes significantly to

making the site impermeable—pending the implementation of such a site

management regime.275

In 1990, under a federal-provincial program for the cleanup of

orphan, high-risk contaminated sites,276 the two levels of government

created, on a 50/50 basis, a special C$51 million fund for the remediation

of “those class I GERLED sites of greatest concern whose liable parties

were legally unidentifiable or whose owners could not or would not pay

for assessment or remediation costs.”277 Initially planned as a five-year

program, this initiative was extended to 1996.278 The Adacport site was

not eligible for funding under this program, the City of Montréal having

102 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

273. Foratek Report. A federal solid waste landfills inventory has been in existence since

2000; see “Federal Contaminated Sites Inventory,” online at <http://www.tbssct.gc.ca/fcsi-rscf/home-accueil.aspx?Language=EN&sid=wu529152325823>

(last modified: 25 January 2004).

274. Foratek Report, p. 97.

275. Ibid., pp. 97-98.

276. SeeReport of the Auditor General of Canada (1995), c. 2, “Environment Canada: Managing the Legacy of Hazardous Wastes,” online at <http://www.oag-bvg.gc.ca/

domino/reports.nsf/html/9502ce.html> (date viewed: 16 March 2007).

277. GERLED inventory, p. 14.

278. Ibid.
— by contract signed with the federal and provincial governments —

taken over environmental responsibility for the site (see above, s. 8.2.2),

not to mention that the site had been indexed as a class II site.

8.3.2.2 Cleanup of the St. Lawrence River

In 1997, as part of a federal-provincial action program for cleanup

of the St. Lawrence River (St. Lawrence Vision 2000), a state of the environment report was published for the section of the St. Lawrence where

the Technoparc site is located.279 The report contains the following

abstract:

The La Prairie Basins study area (ZIPs280 7 and 8) includes the section of

the St. Lawrence River that extends from LaSalle to the Southwest district

of Montreal on the north shore and from Sainte-Catherine to Saint-Lambert on the south shore. The river’s discharge—consisting mainly of

waters from the Great Lakes and, to a lesser extent, some of the waters of

the Ottawa River—flows first through the Lachine Rapids and then into

the Greater La Prairie Basin. Two artificial bodies of water, both created to

allow ships to avoid the rapids, are connected here. The Lachine Canal,

built in the 1820s, attracted a large number of industrial plants to its banks,

making it for more than a century the center of industrial development on

Montreal Island. Today, the bed of the canal and neighboring properties

are contaminated, limiting their development. The Lesser La Prairie Basin

is a portion of the river that, since the 1950s, has been isolated from the

river’s main stem by the St. Lawrence Seaway, where the water level is

controlled.

Here, the St. Lawrence passes through the most densely urbanized area

between Lake Ontario and the sea. Except for a few sites on the islands,

practically no natural riverbanks remain. Nevertheless, the aquatic environment has escaped much of the disturbance and on certain islands,

protected by difficult access, terrestrial habitats have persisted in nearoriginal condition.

Most of the contaminants come from upstream, that is to say the

Great Lakes, the international section of the St. Lawrence and Québec

INFORMATION OBTAINED BY THE SECRETARIAT 103

279. Saint Lawrence Centre, Regional Assessment – La Prairie Basins (Lachine Rapids,

Greater and Lesser La Prairie Basins), Priority Intervention Zones 7 and 8, (March 1997)

(hereinafter, “Regional Assessment”), online at <http://www.slv2000.qc.ca/zip/

bilans_pdf/Bilanzip7_8_a.pdf> (date viewed: 30 March 2007).

280. Zone d’intervention prioritaire (Priority intervention zone); see Canada, Report of the

Commissioner of the Environment and Sustainable Development (2001), c. 1, “A Legacy

Worth Protecting: Charting a Sustainable Course in the Great Lakes and St.

Lawrence River Basin,” s. 7, “Ecosystem Initiatives,” online at <http://www.oagbvg.gc.ca/domino/reports.nsf/html/c101sec7e.html> (date viewed: 2 April 2007).
sections located upstream. Still, water quality in the rapids and the Greater

La Prairie Basin is generally good. The relatively rapid flow prevents contaminated sediments from accumulating in the area. The diversion of

municipal wastewater to treatment plants between 1988 and 1995, coupled with industrial cleanup programs, have helped improve the quality

of the aquatic environment. This trend should continue and allow for the

pursuit of some recreational activities.

The slow-flowing waters of the lesser basin and the presence of three small

tributaries into which flow a large number of non-point pollution sources

(agricultural, urban and industrial) may delay the return of conditions

conducive to aquatic organisms and hinder some recreational uses of this

body of water.

The La Prairie Basins area is of great interest from a biodiversity perspective. The Lachine Rapids has the last genuine stretch of whitewater in the

St. Lawrence and is home to unique aquatic habitats. Fish that migrate

over long distances must use this section to complete their life cycle. In

addition, the islands are home to diverse animal and plant communities.

The last few years have seen an increase in recreational activities, particularly in the Lachine Rapids. It is important to attempt to reconcile the

development of certain recreational activities with the protection of these

significant natural assets.281

The report contains the following “Management Perspective”:

The Priority Intervention Zones program (known as the ZIP program) is a

joint initiative of the federal and provincial governments involving riparian communities in the implementation of rehabilitation measures for the

St. Lawrence River and the Saguenay River. The program has three

phases: production of a local-level assessment report on the St. Lawrence,

consultations with riparian partners and identification of intervention priorities, and development of an ecological rehabilitation action plan or

ERAP.

The regional assessment report is a synthesis of four technical reports

on the biological, physico-chemical, socio-economic and human health

aspects of the study area. These reports are prepared by the federal and

provincial partners of the St. Lawrence Vision 2000 action plan, as part of

its Community Involvement component.

104 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

281. Regional Assessment, pp. xi-xii; see also Mathieu-Robert Sauvé, “PCB, hydrocarbures, eaux d’égouts... Habitat 67 – Surfer sur une vague de pollution” (PCB,

hydrocarbons, sewage... Habitat 67, surfing on a wave of pollution), Espaces(March

2006), pp. 41-43.
This process of gathering and analysing data on a local scale is a first for

the St. Lawrence and Saguenay system. The technical reports go a step further, assessing our knowledge of the current state of a given area based on

known quality criteria.

The challenge, then, is to venture a scientific opinion based on available

information. The pitfalls are numerous: the data were collected for other

purposes, the geographic and temporal coverage is less than ideal, and the

chemical analysis methods are not standardized, to name but a few.

The ZIP work team remains nonetheless convinced that one can take a

careful, candid look at each study area without further delay. This initial

assessment is a starting point and backgrounder intended for the riparian

partners in each study area.282

The Regional Assessment includes the following inventory

(Table 1) of the main contaminated sites in the La Prairie Basins area:283

INFORMATION OBTAINED BY THE SECRETARIAT 105

282. Regional Assessment, p. ix.

283. Ibid., c. 4, “Main Effects of Human Activities on the Environment,” s. 4.2, “Contamination,” s. 4.2.1, “Sources of Contamination,” s. 4.2.1.2, “Industries,” p. 36, Table 5,

“Contaminated sites in the La Prairie Basins area.”
Table 1 Contaminated sites in the La Prairie Basins area

(St. Lawrence Centre, 1997)

Classification by

Location/Jurisdiction Owner Main contaminants potential risk*

A. MINISTÈRE DE L’ENVIRONNEMENT ET DE LA FAUNE DU QUÉBEC

(GERLED sites)

North shore

Southern tip and

southwest part of

Île des Sœurs

Several private

owners

Heavy metals, phenols,

PAHs

III

Former Adacport site City of Montreal Heavy metals, oils and

greases

II

Contaminated soils

landfill in LaSalle

Cintec

Environnement inc.

Heavy metals, PAHs,

and oils and greases

III

South Shore

Site of former sanitary

landfill in Delson

City of Delson Phenols, iron, lead, zinc II

Domtar Inc.

Site in Delson

Domtar Inc. Pentachlorophenol,

creosote, arsenic, copper

and chromium

II

B. FEDERAL GOVERNMENT

North Shore

Bed of Lachine Canal Heritage Canada Heavy metals and PCBs Not classified

Banks Lachine Canal** Heritage Canada Heavy metals Not classified

VIA Rail — Montreal

Maintenance Centre

Canadian National Heavy metals, oils and

greases, hydrocarbons

Priority 1

VIA Rail —

Pointe-Saint-Charles

Yards

Canadian National Hydrocarbons, heavy

metals

Priority 1

Naval Technology

Testing Centre, LaSalle

National Defence Hydrocarbons Priority 2

South Shore

Saint-Lambert

Marshalling Yard

Canadian National Hydrocarbons Priority 2

Patton landfill site Northern and

Indian Affairs

Mercury, cyanide,

phenols, PAHs and PCBs

Priority 2

* The classification of each site in terms of environmental risks (right column) was determined by the agency with jurisdiction.

** This installation was not classified in the inventory carried out by D’Aragon, Desbiens,

Halde et Associés. Rather, the Lachine Canal was the subject of a characterization study

of its banks (soils and groundwater) conducted by Environcorp in 1990 and Areco

Canada inc. in 1993.

106 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
Thus, whereas the federal government classified the VIA Rail and

CN sites as “priority 1” sites, the Adacport site was a class II site under

the GERLED program.

8.4 Facts surrounding Environment Canada’s inspections, before

and after the issuance of a warning in 1998

In Resolution 04-05, the Council instructed the Secretariat to prepare a factual record in respect of the facts surrounding Environment

Canada’s inspections, before and after the issuance of a warning in 1998.

This section of the factual record presents the facts that occurred prior to

Environment Canada’s issuance of a warning to the City of Montréal, in

1998, as well as those occurring at the time the warning was issued and

afterwards.

8.4.1 Facts Preceding the Warning

In 1991, upon receipt of a complaint that an oily substance was

leaking from the banks of the St. Lawrence, upstream of the Victoria

Bridge, Environment Canada was the first agency to act, installing

absorbent pads around the hydrocarbons floating on the surface of

the river, near the point of discharge.284 At a meeting organized by

Environment Canada, with representatives from CN, VIA Rail, the

City of Montréal, Dessau Environnement Ltée, ADS Associés Ltée, and

MDDEP in attendance, the two governmental agencies presented their

respective positions:

INFORMATION OBTAINED BY THE SECRETARIAT 107

284. Environment Canada, “Adacport meeting, minutes,” 15 October 1991, p. 2:

“Point 2. Environment Canada’s role and position

“On 9 August 1991, Environment Canada instituted oil containment and recovery

measures.

“On 9 September 1991, CN initiated containment measures as a good corporate citizen. It agreed to take charge of the operations and the costs incurred by Environment Canada since 9 August 1991 ($31,000), without accepting responsibility for the

leak.

“[Name withheld] specified Environment Canada’s goals:

• find the source(s) in order to contain them or to recover the discharges; and

• foster a consensus among all partners to ensure that they resolve the problem

together on a permanent basis;

“The same EC representative also specified Environment Canada’s two approaches: emergency mode (contain the source) and technical adviser mode.

“In its emergency mode, Environment Canada must try to find the person responsible for the spill so that he pays the costs. If the offender is identified but refuses to

pay, Environment Canada will attempt to recover costs through legal action. Whenever EC incurs expenses, it lets the taxpayers know through a press conference.”
[Environment Canada representative] explained that it is not Environment

Canada’s role to gather together all the studies and assign liability. The purpose of this meeting is to find acceptable solutions for the environment.

In response to a MENVIQ question, [Environment Canada representative]

says that, based on a visual assessment, the LNAPL seepage rate is about

15 liters per hour. Analyses have been done but the results are not yet

available. [EC representative] undertakes to provide the results in order to

move the file forward, if possible. There may be PCBs, which would complicate matters. Disposal of the recovered oil would have to be done in

compliance with the applicable regulations. Environment Canada says

that the parties should come to an agreement on sharing the costs of recovery. Dialogue is necessary and the entities concerned have an interest in

working together. MENVIQ’s position is that each party is responsible for

the contamination on its site. MENVIQ suggests that each party isolate

and recover LNAPLs on their property.285

At the meeting, it was asked that requirements be communicated

to decision makers in each organization:

The CN, VIA Rail and Ville de Montréal representatives do not have

authority to commit their organizations to participate in cleanup work or

pay for costs that might be incurred. They therefore request that Environment Canada advise, in writing, their respective directors of the situation

and of the need to act in a coordinated fashion. [EC representative] offers

to write a letter, for signature by the Director, to inform the directors of

all the organizations involved.

[MENVIQ representative] reads aloud a March 1989 letter addressed

to [Environment Canada’s Regional Director General for Conservation

and Environmental Protection] in which the position of Environnement

Québec’s is spelled out.286

Under the Fisheries Act, a defendant who is proven beyond a reasonable doubt to have committed an offence can avoid a guilty verdict if it can

establish, on a balance of probabilities, that it was duly diligent in trying to

avoid committing the offence. Beginning in 1991, the City of Montréal and

CN shared the cost of ensuring that the booms were in good working

order, including replacing the absorbent pads (see Figure 10).287 The

108 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

285. Ibid., p. 3.

286. Ibid. The Secretariat did not obtain copies of these letters.

287. See Report on a telephone conversation between an inspector from the Pollution

Prevention and Toxic Substances Control Division of Environment Canada’s Environmental Protection Branch, Québec Region, and an employee of Ville de Montréal, File no. LP363-0017, Re: Removal of booms during the winter (1 November

2000).
booms were removed during the winter.288 During the years that followed, Environment Canada inspected the booms on a regular basis.289

Figure 10 Hydrocarbon discharges into the river, booms,

and absorbent pads290

INFORMATION OBTAINED BY THE SECRETARIAT 109

288. Ibid.

289. Environment Canada Response to CEC Request for Information, Appendices 1-21

and 58.

290. Submission, p. 6: “Biologist David Dillenbeck visited the site on February 20, 2002.

Mr. Dillenbeck was an Ontario Ministry of Environment Regional Biologist for

more than 20 years and has conducted numerous scientific investigations and testified in many trials as an expert witness, including cases in Deloro, Kingston and

Hamilton, Ontario and Moncton, New Brunswick. Mr. Dillenbeck prepared a

report dated April 4, 2002 based on his visit to the site and the sample analyses, photos, videos and notes. [Please see entire report included in brief.]” See also Environ-
Having installed a system to recover LNAPLs at the southern

boundary of its property, in 1997, CN stopped sharing in the cost of

assessing and managing discharges of deleterious substances into the St.

Lawrence.291 In 1997, the statute of limitations had run out for prosecuting violations of s. 36(3) that occurred prior to 1991.292 CN suggested

that in its opinion, construction work on the former landfill293 – carried

out, in part, by the City of Montréal, with the authorization of MDDEP –

could help to explain the deposits into the St. Lawrence (see above,

s. 8.2.2). Legal action under the Fisheries Act does not rule out actions in

warranty or counterclaims.294

110 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

mental Bureau of Investigation, Montreal Technoparc Report (April 11, 2002): “These

images were taken at Montreal’s Technoparc site between October 3, 2000 and February 20, 2002.”

291. Letter from the Assistant Vice-President, Environment, CN, to the Economic Development Department, Ville de Montréal, Re: Leakage of hydrocarbons into the St.

Lawrence River in Pointe-St-Charles, Corrective Measures – Phase 1 B, Resolution

No. CE9602124 (30 September 1997), p. 2.

292. See S.C. 1991, c. 1, s. 10. See also “Canada’s Comments on the Draft Factual Record

for SEM-98-004 (BC Mining), 14 May 2003,” in Commission for Environmental

Cooperation, Factual Record – BC Mining Submission (SEM-98-004) (Montreal: Yvon

Blais, 2003), p. 245: “As a result of a substantive amendment to the Fisheries Act in

1991, a violation of section 36(3) became a hybrid offence which could be prosecuted

by summary conviction (misdemeanour) or by way of indictment (felony), and the

two-year limitation period for prosecuting offences was dropped. This amendment, however, did not have retrospective application. This means that no person

could be prosecuted after 1991 for a violation of s. 36(3) which occurred before

1991.”

293. Letter from Deputy Vice-President, Environment, CN to Director, Environment

Department, Ville de Montréal, Re: Technoparc – Deposits into the river (17 February 2003): “Dear Sir, I have reviewed your information request concerning the

recovery system that Canadian National has been operating on the Butler Spur

since 1997. The system consists of three pumping units which control a total of 122

recovery wells and 14 injection wells, 22 of which are in the northern sector, 40 in the

centre, and 60 in the southern sector. The system has been in operation since 1997

and, except for a few stoppages for routine maintenance, the hydraulic barrier has

been maintained on a permanent basis. The barrier has a 15-metre catchment area.

We are in the process of preparing a monitoring report for the year 2002 that should

be ready by mid-March. Upon its completion, we will be happy to provide you with

a summary. As for explaining the sudden increase of upwellings in the river, I do

not think that they can be attributed to the brief maintenance stoppages. The

piezometric readings taken by our consultants have shown no anomalies since the

containment system was put into operation. However, it has been brought to our

attention that sewer lines have been built along the Bonaventure Expressway and

that much soil compacting has been done at Technoparc. Either or both of these

activities may partially explain the increase in hydrocarbon deposits into the river.

Best regards.”

294. See section 42(5) of the Fisheries Act.
8.4.2 Issuance of a Warning to City of Montreal

Under the Compliance and Enforcement Policy, enforcement personnel may issue warnings:

• when they have reasonable grounds to believe that a violation of the

Fisheries Act has occurred;

• where the degree of harm or potential harm to the fishery resource, its

supporting habitat or to human use of fish appears to be minimal; and

• where the alleged violator has made reasonable efforts to remedy or

mitigate the negative impact of the alleged offences on the fishery

resource and its habitat.295

On 12 November 1998, Environment Canada issued a warning to

the City of Montréal, as the latter had ceased pumping recovered oils

and maintaining the booms.296 The warning described the facts of the

case as follows:

Upon inspection, I found reasonable grounds to believe that you are in

contravention of the Act for having permitted, on 19 October 1998, the

deposit of deleterious substances (i.e., PCB-contaminated hydrocarbons)

into water frequented by fish, through the cessation of pumping and

recovery activities in the St. Lawrence River.297

As for the enforcement of s. 36(3) of the Fisheries Act, Canada has

previously observed that:

The two most common defences are officially induced error and due diligence. Although the evidentiary onus is on the accused to prove such a

defence, the investigating law enforcement agency or department investigates both these components of the case before the Crown prosecutor

approves the laying of charges.298

In the concluding section of its warning, Environment Canada

addressed the defense of due diligence in describing the shortcomings

attributed to the City of Montréal:

This warning alleges a lack of due diligence on your part regarding compliance with the Act as seen in your failure to meet its requirements.

Should you fail to comply with this warning before our next inspection,

other enforcement measures will be taken.

INFORMATION OBTAINED BY THE SECRETARIAT 111

295. Compliance and Enforcement Policy, p. 19.

296. Environment Canada Response to CEC Request for Information, Appendix 22.

297. Ibid., p. 2.

298. Canada’s Response to Submission SEM-98-004 (BC Mining), 8 September 1999,

p. 14.
This warning, the alleged violations, and the surrounding circumstances

will be part of the compliance history of the City of Montréal and its officials, and will be taken into consideration in the event of future violations.299

Under the Compliance and Enforcement Policy, the objective is to

determine effective measures for achieving the desired result:

The desired result is compliance with the Act in the shortest possible time

and with no further occurrence of violations, in order to protect fish and

fish habitat and human use of fish.300

In this regard, the Compliance and Enforcement Policy includes,

among the factors to be considered, the alleged violator’s history of compliance with the provisions of the Act.301 According to Environment

Canada, beginning in 1998, the City of Montréal had one instance of

non-compliance with section 36(3) of the Fisheries Act in connection with

discharges of hydrocarbons on the banks of the St. Lawrence. This led to

the issuance of a warning.302

Under the Compliance and Enforcement Policy, one must also take

into account law enforcement measures taken by other federal, provincial, or territorial authorities when selecting a measure that will be effective in dealing with an alleged violation and enforcement personnel

must consider how similar situations in Canada are being or have been

handled when deciding what enforcement action to take.303 As regards

section 36(3) of the Fisheries Act, in 1998, the federal government and

Québec had already been working together for many years to combat

pollution of the St. Lawrence River by industrial effluents.304 In one case,

112 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

299. Environment Canada Response to CEC Request for Information, Appendix 22, p. 2.

300. Compliance and Enforcement Policy, p. 18.

301. Ibid.

302. Environment Canada Response to CEC Request for Information, Appendix 22, p. 2.

303. Compliance and Enforcement Policy, p. 18.

304. See “Federal and Quebec Governments Tackle Industrial Toxic Waste in the St.

Lawrence River,” Press Release, 8 June 1989, online at <http://www.slv2000.qc.

ca/communiques/phase1/rejets_toxiques_a.htm> (date viewed: 16 March 2007).

See also Regional Assessment, Note to readers, “Reports on Priority Intervention

Zones (known as PIZs) are produced as part of the St. Lawrence Vision 2000 action

plan by Environment Canada’s St. Lawrence Centre, in conjunction with Fisheries

and Oceans, Health Canada, the ministère de la Santé et des Services sociaux du

Québec [Québec Ministry of Health and Social Services] and its partners, and the

Ministère de l’Environnement et de la Faune du Québec”; p. 29: “Among other

major disruptions of the aquatic habitats in recent decades have been the construction of Highway 132 (south shore), the Bonaventure Autoroute, parking lots for

Expo 67 (the site of today’s Technoparc) and the Adacport, the installation of the
a company felt wronged when the federal government laid charges

against it and its directors under section 36(3) of the Fisheries Act before

expiry of the time period the province had granted the company to clean

up its effluent.305

Concerning the Technoparc file, MDDEP has always been ready to

accept that the City of Montréal would only take measures to address

the groundwater if, following the installation of a system to recover

LNAPLs, monitoring revealed insufficient improvement in groundwaINFORMATION OBTAINED BY THE SECRETARIAT 113

Brossard main sewer and fill work on Ile des Sœurs,” online at <http://www.slv

2000.qc.ca/zip/bilans_pdf/Bilanzip7_8_a.pdf> (date viewed: 30 March 2007). See

also “Pour une économie bleue – le Saint-Laurent en développement” (For a blue

economy – Developing the St. Lawrence) (Speech given by the Regional General

Director, Environment Canada, Québec Region, and co-president for Canada on the

St. Lawrence Vision 2000 Action Plan, at the Blue Economy Forum organized by Les

Amis de la Vallée du Saint-Laurent, 12-13 October 1999, Delta Hotel, Trois-Rivières,

online at <http://www.slv2000.qc.ca/divers/discours/JPG_accueil_a.htm> (date

viewed: 27 March 2007).

305. See NL Industries Inc., form 10-K540, 5 March 1996: “The Quebec provincial government has environmental regulatory authority over Kronos’ Canadian chloride

and sulfate process TiO2 production facilities in Varennes, Quebec. The provincial

government regulates discharges into the St. Lawrence River. In May 1992, the

Quebec provincial government extended Kronos’ right to discharge effluents from

its Canadian sulfate process TiO2 plant into the St. Lawrence River until June 1994.

Kronos completed a waste acid neutralization facility and discontinued discharging waste acid effluents into the St. Lawrence River in June 1994. Notwithstanding

the foregoing, in March 1993 Kronos’ Canadian subsidiary and two of its directors

were charged by the Canadian federal government with five violations of the Canadian Fisheries Act relating to discharges into the St. Lawrence River from the

Varennes sulfate process TiO2 production facility. The penalty for these violations,

if proven, could be up to Canadian $15 million. Additional charges, if brought,

could involve additional penalties. The Company believes that this charge is inconsistent with the extension granted by provincial authorities, referred to above,

and is vigorously contesting the charge,” online at U.S. Securities and Exchange

Commission <http://sec.edgar-online.com/1996/03/05/00/0000072162-96-

000003/Section3.asp> (date viewed: 16 March 2007). See also Environment Canada,

“Fisheries Act, Historical Legal Activities Report from January 1, 1988 to March 31,

1999 (compiled by Charged Date),” Table 23: Québec Region, Kronos Canada Inc.,

online at <http://www.ec.gc.ca/ele-ale/default.asp?lang=En&n=DFB7F234-1&

offset=2&toc=show> (date viewed: 23 April 2007). See also Louis-Gilles Francœur,

“L’année politique au Québec 1993-1994: L’environnement (The year in Québec

politics, 1993-94: the environment)” Le Devoir, undated, online at <http://www.

pum.umontreal.ca/apqc/93_94/francoeu/francoeu.htm> (date viewed: 27 March

2007).

306. See, for example, letter from Regional Director, MDDEP to Assistant General

Manager, Environment, Roads and Infrastructure Department, Ville de Montréal,

Re: Technoparc site – Containment option (2 April 2003), p. 2: “You will agree that it

would not be any more justifiable to treat groundwater if there were no need to do

so.”
ter quality.306As for Environment Canada, it has always maintained that

no violations of section 36(3) of the Fisheries Act will be authorized.307 In

November 2003, the City’s consultant confused the positions of the two

levels of government, attributing MDDEP’s position to Environment

Canada and claiming that Environment Canada had changed its position within the space of a few days.308

The Secretariat asked Canada the following question:

Were there any discussions between the federal, provincial and municipal

governments for the purpose of issuing an order or initiating legal proceedings under Québec’s Environment Quality Act aimed at, among other

things, enforcing compliance with section 36(3) of the Fisheries Act at the

Montreal Technoparc? If so, what are the details? If not, why not?

Canada’s answer was:

The talks referred to in the question concern possible discussions between

the Attorney General of Canada and the Attorney General of Québec. The

existence of such talks and their content, if any, may not be disclosed.

Concerning enforcement of section 36(3) in relation to water pollution caused by contaminated sites, Environment Canada has stated that

it has not developed a framework approach.309 For its part, since 1990,

114 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

307. See, for example, Ville de Montréal, Project to contain and recover hydrocarbons at

the Technoparc – Minutes, 16 May 2002, p. 2: “[Environment Canada representative] also mentioned that there are no provisions in the Fisheries Act to authorize

toxic discharges and that consequently, Environment Canada was under no obligation to consider any such eventuality.” See also Ville de Montréal, First meeting of

Technical Committee (12 August 2004), Minutes, p. 2: “[Environment Canada representative] stated that the provisions of the Fisheries Act are general but strict and

that no regulations exist for relaxing its enforcement in the case of the problem

in question.”

308. SLEI, “Interception des phases flottantes d’hydrocarbures et des eaux souterraines

– Site de l’ancien Adacport – Document d’orientation” (Containment of LNAPLs

and groundwater at former Adacport site – Guidance document), November 2003,

pp. 9-10, submitted to Ville de Montréal, Environment, Roads and Infrastructure

Department.

309. On 28 November 2006, the Secretariat asked Canada the following question: “In a

memorandum sent to you by the investigator of the file (Re: Technoparc, Montreal,

undated), he states that he had to take into account opinions and recommendations

of counsel in other similar files as well as relevant jurisprudence, in order to determine whether it is possible to gather all the elements of proof with a view to laying

criminal charges under the Fisheries Act. Aside from the Compliance and Enforcement policy, is there a framework approach for enforcing section 36(3) of the Fisheries Act in the specific context of contaminated sites in Canada?” On 8 January 2007,

Canada answered: “No.”
MDDEP has an order power under its Environment Quality Act which

allows it to require a polluter (regardless of whether it owns or controls

the property in question) to assess a site and carry out necessary

clean-up work, a power whose legality has recently been affirmed by the

courts310 and its scope widened.311 The MDDEP can also resort to a provision of the law, also quite recent, that requires persons engaged in railway transportation auxiliary activities to notify their neighbours and

MDDEP when they learn that contaminants are migrating or are at risk

of migrating beyond the bounds of their properties.312 MDDEP invoked

this provision to secure CN’s cooperation in this file.313

Furthermore, Québec’s Environment Quality Act prohibits construction on a former landfill without the authorization of the Minister

of the Environment.314MDDEP used this provision to prompt the City of

INFORMATION OBTAINED BY THE SECRETARIAT 115

310. See Mira Gauvin and Anne-Marie Sheahan, “Imperial Oil Ltd. v. Quebec (Minister

of the Environment)” (28 November 2003), online at <http://www.mccarthy.ca/

pubs/publication.asp?pub_code=1451> (date viewed: 24 January 2007).

311. See Sophie Lavallée, La réhabilitation des terrains contaminés et le droit québécois: un

droit négocié (Cowansville: Yvon Blais, 2004).

312. See Robert Daigneault, “La migration des contaminants et la responsabilité en droit

pénal ou administratif,” 59 Revue du Barreau 157 (1999), online at <http://www.

barreau.qc.ca/fr/publications/revue/1999/no1/pdf/155.pdf> (date viewed: 24

January 2007). See also Environment Quality Act, R.S.Q., c. Q-2 (hereinafter, “EQA”),

s. 31.52.

313. Ville de Montréal, Fifth meeting of Technical Committee (18 November 2004),

Meeting minutes, p. 5. See, however, Québec (P.G.) c. Compagnie des chemins de fer

nationaux du Canada [Attorney General of Québec v. Canadian National Railway Company] 2005 CanLII 13081 (QC C.Q.): “Is the provincial regulation on snow removal

sites adopted under theEnvironment Quality Act, R.S.Q., Q-2, r. 15.1, constitutionally

applicable to the defendant company? [...] Snow removal activities are essential to

the operation of the defendant company in that they enable it to perform its activities safely and according to its mission. The provincial regulation concerns the

administration of the company; as such, it affects a vital function of the company,

and therefore cannot be applied to the respondent. Consequently, the Court

dismisses the charge against the defendant.” See also Anne-Marie Sheahan, “A

case comment: Attorney General of Quebec v. Canadian National Railway Company,”

12 August 2005, online at <http://www.mccarthy.ca/pubs/publication.asp?pub_

code=1970> (date viewed: 3 April 2007).

314. EQA, s. 65: “No land formerly used as a site for elimination of residual materials

may be used for construction purposes without the written permission of the

Minister.

“The Minister may impose conditions, in particular, the deposit of a guarantee,

when giving his permission pursuant to this section.”

See also MDDEP, Guide relatif à la construction sur un lieu d’élimination désaffecté(Article 65, L.Q.E.) (Guide concerning construction on a former landfill site (section 65,

EQA)), September 2003 (last modified: November 2005), s. 5 “Études à réaliser”

(Studies to be conducted): “A firm specializing in environmental work shall be commissioned to carry out a characterization study so as to ensure that quality work is
Montréal to act expeditiously to install an LNAPL containment system

along the shore of the St. Lawrence, refusing, for all intents and purposes, to allow new businesses to move into Montreal Technoparc in the

meantime.315

On 16 November 1998, that is, four days after Environment Canada’s warning, a meeting was held in MDDEP’s offices in Montreal, with

representatives of the City, Environment Canada, and MDDEP in attendance.316 After reviewing the situation and discussing options for a permanent solution, participants considered existing programs that might

facilitate implementation of a permanent solution. MDDEP mentioned

Revi-sols, a joint City of Montréal/MDDEP, C$60 million, five-year

urban contaminated sites remediation program.317 Not eligible under

this program was any work carried out to comply with an MDDEP order

or a court order,318 pursuant to the Fisheries Act, for example.319 Furthermore, “any other financial assistance for the execution of eligible projects from the governments of Canada and Québec, their agencies, or

from a legal representative of these governments, which is granted for

eligible projects, shall be deducted from total eligible costs.”320

For their part, at the meeting, Environment Canada’s representatives mentioned the MCEBR and other research and development or

assistance programs for small- and medium-sized businesses.321 Participants agreed that efforts should be made to find ways to take advantage

of these programs in the interests of a permanent solution.322

116 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

done, in accordance with best practices, and that the appropriate impact mitigation

measures are devised, in accordance with existing laws and professional codes.”

315. Ville de Montréal, First meeting of Technical Committee (12 August 2004), Minutes,

p. 5: “It is urgent that a solution be proposed as the MENV has temporarily suspended issuance of construction permits for development projects on city lands

(unless such projects include LNAPL recovery).”

316. MDDEP, Minutes, Re: Contamination of the St. Lawrence River due to leaching

from the City of Montréal’s Technoparc (the former Adacport site), 28 October 1998.

317. Ibid., p. 3.

318. Revi-sols (contaminated sites rehabilitation program), Protocole d’entente entre le

ministre de l’Environnement du Québec et la Ville de Montréal (Memorandum of understanding between the Québec Minister of the Environment and Ville de Montréal)

(23 September 2004), p. 11.

319. See above, s. 6.2.4.

320. Revi-sols, Protocole d’entente entre le ministre de l’Environnement du Québec et la Ville de

Montréal (23 September 2004), p. 6.

321. Ibid.

322. Ibid.
On 1 December 1998, the City of Montréal informed Environment

Canada in writing that it had put back in place the temporary hydrocarbon recovery measures.323

8.4.3 Facts Occurring After the Warning

In 1998, MDDEP released a new version of its 1988 contaminated

sites policy.324 It now spelled out, for the first time, how to decide

whether contaminated groundwater requires some sort of action (see

Figure 11).325

INFORMATION OBTAINED BY THE SECRETARIAT 117

323. Environment Canada Response to CEC Request for Information, Appendix 24.

324. MDDEP, Politique de protection des sols et de réhabilitation des terrains contaminés,

Annexe 2 – Les critères génériques pour les sols et pour les eaux souterraines (Soil

protection and contaminated sites rehabilitation policy, Schedule 2 – General criteria for soil and groundwater) (1998): “Where groundwater contamination originates from an industrial establishment set up after this Policy comes into force,

action shall be taken in respect of the soil and groundwater to restore the land to its

condition prior to the facility’s establishment (see chapter 5 of the Policy). In other

cases, an assessment of the impact of operations and contaminated soils on groundwater quality is required. If there is a real or apprehended impact on groundwater

[see definition, section 2.2.2.1; a real impact exists, notably, when there is seepage

(real or apprehended) into surface waters of groundwater contaminated in excess of

the criteria established for the protection of surface waters; infiltration, into a sewer

system, of groundwater contaminated in excess of criteria established for the protection of surface waters, or emanations from contaminated groundwater of volatile

substances that either pose a risk to public health and safety or are a source of

discomfort (e.g., gaseous hydrocarbons)], on-site action shall be required to eliminate or reduce the active contribution of contaminants such that former uses may

be restored. To this end, interventions shall consist of recovering LNAPLs and,

depending on the situation, recovering, decontaminating or proceeding with the

containment of those components that constitute active sources of contamination

(i.e., contaminated soils and wastes). In certain situations, it may also be necessary

to proceed with the decontamination or containment of the contaminated groundwater and to ensure the supply of drinking water to users.” See also Sophie

Lavallée, “Petite histoire de la Politique de 1998,” in La réhabilitation des terrains

contaminés et le droit québécois: un droit négocié (Cowansville: Yvon Blais, 2004),

pp. 208 et seq.

325. Ibid.
Figure 11 Groundwater intervention procedure

1. Contaminated: concentration above the measured background level or the quantification limit of the analytic method.

2. Poor practices, faulty equipment, etc.

Source: MDDEP, 1998.

118 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
The response procedure proposed in the 1998 policy reflects the

basic conditions imposed by Québec on the City of Montréal in the sale

of the Technoparc site: 1) recover LNAPLs and 2) monitor groundwater

quality to determine whether removal of LNAPLs (which Québec

referred to in 1989 as “mitigation measures”) brings groundwater into

compliance with applicable water use criteria.326 However, MDDEP’s

authorization did not prescribe specific conditions (such as those in the

response procedure presented in Figure 11) concerning the recovery,

decontamination or containment of wastes and contaminated soils

found on the Technoparc site.327

Under the Compliance and Enforcement Policy, the alleged violator’s willingness to cooperate with individuals designated by the Minister of Fisheries and Oceans under the Fisheries Act as fishery officers or

fishery guardians (s. 5), or as fishery inspectors (s. 38), is a factor to be

considered when determining the appropriate measure to take in the

event of an alleged violation.328 In 1999, the City of Montréal, MDDEP

and Environment Canada participated in a “value analysis exercise”

facilitated by a consultant. At the end of this exercise, the City decided

to adopt the same remediation objective as CN: contain and recover

LNAPLs migrating off the Technoparc site towards the St. Lawrence

River, without treating the groundwater.329 The report of the consultant

retained to organize this exercise contained these instructions:

INFORMATION OBTAINED BY THE SECRETARIAT 119

326. See above, s. 8.2.2.

327. Ibid.

328. Compliance and Enforcement Policy, p. 18.

329. Miri-Valorex, “Ville de Montréal – Technoparc – Écoulement d’hydrocarbures au

fleuve St-Laurent/Rapport” (City of Montréal – Technoparc – Report on leakage of

hydrocarbons into the St. Lawrence River), June 1999, pp. 11-12:

“Environment Canada criteria:

• “Any deposit of regulated contaminants into the river in excess of 50 mg/L is a

violation of CEPA (Canadian Environmental Protection Act), which the responsible

party must remedy by implementing corrective measures.

• “Where deposits are <50 mg/L, decontamination is required if the quantity of

contaminants is >0.3 g/day. Where the discharge is less than 0.3 g/day, an impact

study shall be submitted in order to evaluate the scope of the corrective measures

to be instituted.

• “EC (Environment Canada) has an interest in deposits into the river, whether

these are LNAPLs or dissolved-phase.

• “Approximately a year ago, EC implemented new regulations on bio-restoration

of contaminated sites. These regulations are particularly restrictive concerning

the origin of the bacteria used, which must come from the same ecosystem as the

site undergoing treatment.

[...]

“In light of the MEF (MDDEP) and EC presentations, participants agreed to restrict

the development of scenarios to those pertaining to LNAPLs. In this regard, [Golder

Associates representative] underscored that CN, in its letter of 30 September 1997,
Chronologically, it is crucial to commence with the following sequence of

events—a sequence that is both essential and a prerequisite to the implementation of any scenario: 1) ask for a legal opinion on the laws, regulations and contracts to be complied with; 2) [...]330

In October 1999, the City of Montréal applied for C$3,671,500 in

financial assistance from the Revi-Sols program for a project to contain

and recover LNAPLs on the Technoparc site.331 The proposed project

included seven components:

Component 1: site history

Component 2: cartography

Component 3: additional environmental characterization

Component 4: preliminary design study

Component 5: hydrocarbon containment and recovery

Component 6: communications program

Component 7: legal opinion.332

In its application, the City of Montréal explained:

Finally, it should be noted that the City of Montréal has undertaken to

retain responsibility for recovering LNAPLs on the Technoparc site. This

commitment was made to the Québec Ministry of the Environment but

also in the context of selling lots to private developers for Cité du cinéma

120 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

withdrew from cost-sharing responsibilities associated with contaminants migrating towards the river, with the exception of those migrating towards Technoparc.”

See also Miri-Valorex, p. 27: “Point 6. Implementation timeline. Scenario 7 (partially

penetrating waterproof barrier at the edge of the wastes) can be implemented in

approximately 30 months. Supposing that the City’s elected officials approve the

project in June 1999, one could expect the system to be in operation by the end of

2001. The activities to be undertaken appear in the tree diagram (Appendix E [not

reproduced herein]). Chronologically, it is crucial to commence with the sequence

of events below–a sequence that is both essential and a prerequisite to the implementation of any scenario: 1) ask for a legal opinion on the laws, regulations and

contracts to be complied with; 2)....”

330. Ibid.

331. Québec, Contaminated sites rehabilitation program – Financial assistance eligibility application form – General information, 29 October 1999 (revised on 16 November 1999).

332. Ibid.
Mel and all the other projects in the pipeline (e.g., Fitzpatrick industrial

condominiums).333

MDDEP accepted this application on 14 December 1999.334 The

City of Montréal then retained the services of SNC-Lavalin Environment

Inc. (SLEI) to carry out an additional characterization study, the City’s

objective being to have an LNAPL recovery system operational, at the

southern boundary of Technoparc, as of 2001.335 SLEI submitted the final

version of the additional characterization study and the preliminary

design study to the City of Montréal in March of 2002.336

INFORMATION OBTAINED BY THE SECRETARIAT 121

333. Ibid. See also Montreal Regional Environment Council, Mémoire sur la gestion de

l’eau à Montréal et au Québec (Brief on water management in Montreal and Québec),

9 November 1999, c. 2, “La contamination de l’eau” (Water contamination), p. 15,

“Les terrains contaminés” (Contaminated sites): “The MUC (Montreal Urban Community) contains a large number of contaminated sites from which leachates are

discharging. A financial assistance program for the remediation of such urban sites

does exist. However, this program is only aimed at contaminated sites with major

commercial potential. Consequently, contaminated sites that lack such potential

but pose a threat to human health or the environment are excluded from this

remediation program. This means that a large number of contaminated sites are left

to their fate, as their owners lack the financial means and willingness to act. The

Montreal Technoparc site is a good example. This former landfill leaks water

contaminated by hydrocarbons and PCBs directly into the St. Lawrence River.

Although this site has been sampled and characterized, the City of Montréal has not

taken any measures to remedy the situation. CRE-Montreal has retained the following proposals: 2.18 – That the municipalities of the MUC conduct studies to inventory and assess their contaminated sites; 2.19 – That the Government of Québec

review its classification criteria in respect of the contaminated sites to be remediated

in order to take into account these sites’ impact on the environment and human

health; 2.20 – That the City of Montréal install a leachate retention barrier between

the river and the former landfill located under the Technoparc. 2.21 – That the Government of Québec hold public hearings on the management of contaminated sites

in Montreal.” See also Québec, BAPE, L’eau, ressource à protéger, à partager et à mettre

en valeur(2000), c. 3, “Les besoins et les attentes des régions,” “Industries”: “Another

issue of concern is containment of contaminants before they reach the river in the

area where the oil company docks are located, as well as at the Adacport site, near

the Victoria Bridge. In the latter case, the pumping of PCBs and leachates is ongoing

and a committee has been formed to examine long-term solutions (PR3.6, p. 7 and

TRAN53, p. 58).”

334. Letter from Montreal Regional Director, MDDEP to Manager, Public Works and

Environment Department, Ville de Montréal, Re: Program for remediation of contaminated sites in urban areas, 14 December 1999.

335. Quebec, Contaminated sites rehabilitation program – Financial assistance eligibility application form – General information, 29 October 1999, revised 16 November

1999.

336. SNC-Lavalin Environnement inc., Caractérisation environnementale complémentaire

(volets 1, 2 et 3), Projet d’interception et de récupération des phases flottantes d’hydrocarbures, Technoparc, Montréal (Complementary environmental characterization

(components 1, 2 and 3), March 2002.
8.5 Facts surrounding Environment Canada’s 2002-2003

investigation in response to a complaint from members

of the public

One of the guiding principles of the Compliance and Enforcement

Policy is that the public will be invited to report apparent violations of

the Fisheries Act habitat protection and pollution prevention provisions.

Pursuant to Council Resolution 04-05, the following paragraphs of the

factual record present information gathered by the Secretariat regarding

the investigation conducted in 2002-2003 in response to a complaint

from members of the public.

8.5.1 Environment Canada’s Investigation

In April 2002, in response to a complaint filed by Société pour

Vaincre la Pollution and Environmental Bureau of Investigation

(EBI),337 Environment Canada initiated an investigation into possible

violations of section 36(3) of the Fisheries Act in connection with hydrocarbons surfacing in the St. Lawrence River opposite Technoparc. A

month later, Environment Canada called into question the remediation

objective set by the City at the outcome of the 1999 value analysis exercise (see above, s. 8.4.3), which was limited to recovering LNAPLs.338

The minutes of a meeting held in May 2002 reveal the following:

[Environment Canada representative] refers to Environment Canada’s

letter of May 13 to the City and reiterates [EC’s] concern that no groundwater toxicity analysis has been done, a matter of particular concern since,

in his opinion, the water is probably toxic, given the results presented in

the SNC-Lavalin characterization report.339 [Environment Canada repre122 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

337. It is to be noted that an EBI employee, Janet Fletcher, was behind the suit in Fletcher

v.Kingston, in which the City of Kingston was found guilty of violating section 36(3)

of the Fisheries Act by failing to stop the discharge of leachate from a former municipal landfill into the Cataraqui River; see “Backgrounder: Belle Park Litigation”,

online at <http://www.cityofkingston.ca/residents/environment/bellepark/litigation.asp> (date viewed: 30 March 2007). Moreover, it was also an EBI employee

who provided the leachate analyses in the Deloro case (see above, s. 6.2.3.1);

see “Private Prosecution Fact Sheet,” online at <http://www.eprf.ca/ebi/guide.

html> (date viewed: 2 April 2007).

338. Letter from Regional Director, Environmental Protection Branch, Québec Region,

Environment Canada to Director, Laboratory Services, Environment, Roads and

Infrastructure Department, Ville de Montréal, Re: Technoparc floating barrier

project, 13 May 2002.

339. According to the City of Montréal, it is possible that groundwater samples were

contaminated by LNAPLs. See Ville de Montréal, Minutes, Re: Project to contain

and recover hydrocarbons at Technoparc, 16 May 2002, p. 1.
sentative] also mentions that there are no provisions in the Fisheries Act to

authorize toxic discharges and that consequently, Environment Canada is

under no obligation to consider any such eventuality. In addition, he mentions that the Sanexen results340 are very partial and cannot be considered

representative of groundwater at Technoparc.

[MDDEP representative] briefly recaps Technoparc’s historical context: a

landfill since the beginning of the nineteenth century, operated in accordance with then prevailing practices, the site was sold to the City of

Montréal by the provincial and federal governments in 1989 in a context

where the site’s history and the presence of LNAPLs were known facts.

Given this context, the MENV [MDDEP] is showing solidarity in the

implementation of a solution that takes costs and benefits into account.

[Environment Canada representative] reminds those present that the file

is under investigation by Environment Canada, which will be completed

in mid-June. He acknowledges that the federal government might have

certain environmental responsibilities in this file and that, although no

federal program akin to Revi-Sols is in place that would facilitate its financial involvement, federal participation of this kind is neither ruled our nor

assured. [Environment Canada representative] also mentions that a comprehensive assessment of the environmental issues has not been done and

that, according to figures put forward in the SLEI characterization report,

the wall would only solve two-thirds of the problem.

[City of Montréal representative] mentions that if a decision were made to

delay the project in order to proceed with further studies, such a decision

would not be much appreciated in various quarters. If, on the other hand,

the City were to go forward with the wall project in its present form, that

might prove a waste of money, should the approach fail to satisfy Fisheries

Act requirements as regards groundwater.

[The MDDEP representative] wonders about the possibility of proceeding

in steps, i.e., first, put in place a wall (which could eventually apply to

groundwater) and assess the need to treat the groundwater. [City of

Montréal representative] indicates that the project in its present form

would be difficult to “improve upon,” once installed, to add groundwater

treatment, because the wall, which isn’t anchored in the bedrock, does not

block groundwater and the pumping system only applies to LNAPLs.

INFORMATION OBTAINED BY THE SECRETARIAT 123

340. See Canada, National Research Council, Biotechnology Research Institute, Annual

Report 2001-2002, Partnerships: “Sanexen/Montreal Centre of Excellence in Brownfields Rehabilitation (MCEBR) – Research, development and demonstration of

an Ultrasorption system and an adsorbant-bed bioreactor, and pilot project on

groundwater treatment in the Montreal Technoparc,” online at <http://www.irbbri.cnrc-nrc.gc.ca/files/ar_01-02_eng.pdf> (date viewed: 25 April 2007).
[SLEI representative] adds that if groundwater has to be pumped, the

diameter of the pumping wells would probably need to be increased.

[Environment Canada representative] mentions that section 36(3) of the

Fisheries Act, as well as the legal provision authorizing a third party to sue

Environment Canada in the event that it fails to enforce the Fisheries Act,

are putting pressure on Environment Canada, as is the possibility that the

proposed solution might not suffice to resolve the problem in the long

term. For these reasons and given what has been mentioned previously,

[Environment Canada representative] hopes a joint decision will be taken

to proceed with further assessment of the groundwater’s chemical characteristics, its toxicity and impacts on living organisms in order to eliminate

existing uncertainty regarding potential groundwater toxicity.

[MDDEP representative] mentions that if complementary groundwater

characterization leads to the conclusion that action is required to address

dissolved phase groundwater contaminants, a partnership (comprising

the City of Montréal, MENV, Environment Canada, and owners of adjacent lots) would have to be established to fund groundwater management

work.341

8.5.2 2002 Ecotoxicological Study

Council Resolution 04-05 instructed the Secretariat to prepare a

factual record regarding the ecotoxicological study carried out in 2002.

This section of the factual record contains information gathered by the

Secretariat concerning this study.

Following delivery of SLEI’s additional characterization study in

March 2002 and the beginning of Environment Canada’s investigation

in April 2002, the City of Montréal agreed to commission SLEI to carry

out additional sampling to assess whether the Technoparc’s groundwater is toxic to fish.342

124 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

341. Ville de Montréal, Project to intercept and recover hydrocarbons at the Technoparc

– Planning meeting held at the request of the City of Montréal, Minutes, 16 May

2002, pp. 2-3.

342. Letter from the hydrogeologist and project manager, Environmental Projects, SLEI,

to Laboratory Services, Environment, Roads and Infrastructure Department, Ville

de Montréal, Re: Results of the two sampling campaigns to characterize groundwater toxicity at Montreal Technoparc, 11 November 2002, in Environment Canada

Response to CEC Request for Information, Appendix 30.
In May 2002, the City called on Canada’s Minister of the Environment for help.343 In June 2002, the Minister responded in the following

terms:

I can also confirm that my officials at the Environmental Protection Branch

(EPB), Québec Region, have already undertaken measures with representatives of Canadian National, VIA Rail Canada and Jacques-Cartier and

Champlain Bridges Inc. I believe we have convinced them of the significance of the factors weighing in favor of their constructive participation in

roundtable discussions.344

Thereafter, CN received subsidies to test a biotreatment process for

PAH-contaminated groundwater on its property.345 VIA Rail replaced

the entirety of its diesel supply system as well as the spill containment

INFORMATION OBTAINED BY THE SECRETARIAT 125

343. Letter from the Executive Committee member responsible for sustainable development, Ville de Montréal, to the Environment Minister, Environment Canada, 1 May

2002.

344. Letter from the Environment Minister, Environment Canada, to the Executive Committee member responsible for sustainable development, Ville de Montréal, 27 June

2002.

345. See Golder Associates, “Biofilter Development Project for the Treatment of Hydrocarbon Contaminated Water Receives Funding,” 11 April 2003, and Christine Guay

and Hélène Richer – Golder Associates, Ltd., Denis Rho – Biotechnology Research

Institute, Stella Karnis – Canadian National Railway, “Biological Treatment of

PAH-Contaminated Groundwater: A railyard Case Study,” Railroad Environmental Conference 2004, U. Ill. at Urbana-Champaign, 12 October 2004: “Remediation of

groundwater aquifers contaminated with diesel in railyards is often achieved using

Multi Phase Vacuum Extraction (MPVE) systems. Typically, the liquid and gaseous

effluents generated by these systems, even after the removal of the free phase product by an oil-water separator, are treated using expensive and short-lived activated

carbon filter beds. We hypothesized that, through the substitution of these activated

carbon beds by a biotreatment unit, the operation costs could be reduced and the

treatment effectiveness (i.e., biodegradation vs. adsorption) could be improved.

The objectives of this research and development project are to demonstrate the

effectiveness of a biotreatment unit associated with a MPVE system and to perfect

its design to treat the highly charged effluents at a cost similar or lower to currently

available treatment options, in a sustainable development perspective.... This

Golder-BRI project was made possible by the contributions of CN, the Centre

d’excellence de Montréal de réhabilitation de sites, and the Fonds d’action

québécois pour le développement durable and its financing partner, the Quebec

government,” online at <http://cee.uiuc.edu/research/railroad/RREC/

Summaries04.asp> (date viewed: 27 March 2007).
system in its diesel fueling area.346 JCCBI contracted Dessau-Soprin inc.

to assess the groundwater on its property.347

In November 2002, SLEI submitted the results of its additional

sampling campaigns to the City of Montréal.348 Regarding the bioassays

(which measure toxicity), the report concluded that the water from two

of the four wells sampled was acutely toxic, while the results of the

chronic toxicity analysis were less clear.349 The report also noted that the

126 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

346. See Dessau-Soprin inc., “VIA Rail Canada – Pointe-St-Charles Maintenance Centre

– Various projects” (2003): [...] Diesel fueling area – In order to collect all of the diesel

fuel from a spill at the filling stations, VIA Rail’s Montreal Maintenance Centre completely overhauled its fuel containment system. The work done entailed replacing

the underground diesel supply system for locomotives with a new overhead system and included moving and renovating the counters and pumping stations,

replacing the steel spill collection system with concrete collection areas with heating cables and built-in, double wall drainage pipes, connecting the new drainage

system to the oily water from the existing oil separator [...]” online at <http://

www.dessausoprin.com/eng/buildingEngg/list12transport.cfm> (date viewed:

23 March 2007). See also Ville de Montréal, Third meeting of Technical Committee

(16 September 2004), Minutes, p. 2: “In 2001-2002, during an approximately

18-month period, VIA Rail carried out LNAPL recovery operations on the property

it occupies. Apart from that, it relies on CN’s recovery system. VIA Rail’s recovery

operations were limited to LNAPLs. There was no characterization of groundwater.”

347. See Dessau-Soprin inc., “Ponts Jacques Cartier et Champlain Incorporée – Rapport

de forages, d’échantillonnages et d’essais sur les eaux souterraines de la section 12

du pont Champlain” (Jacques Cartier and Champlain Bridges Incorporated – Drilling, sampling and assay report on the groundwater of section 12 of the Champlain

Bridge) (Ref.: contract no. 60562), Final report (April 2004), pp. ii-iv: “Groundwater

flow is generally towards the south-southeast, i.e., along the S and T ramps of the

Bonaventure Expressway towards the St. Lawrence River [...] It should be noted

that this report does not include a comparison of test results with the Canada-wide

criteria established by the Canadian Council of Ministers of the Environment

(CCME) [...] Based on the results presented above, the groundwater flowing under

the property under investigation would not be in compliance with the criteria and

provisions of MENV’s Policy on Soil Protection and Rehabilitation of Contaminated Sites

in respect of groundwater discharges into the St. Lawrence River, due to the quantities of dissolved zinc, hexavalent chromium, ammonia nitrogen, and chlorides;

these quantities exceed the criteria stipulated in MENV regulations (see Résurgence

dans les eaux de surface ou infiltration dans les égouts[Discharges into surface waters or

infiltration into sewers]). Furthermore, every groundwater sample taken in observation wells F-101, F-102, F-103, F-104, and F-106 indicated potentially lethal and/or

sublethal toxicity to test organisms.”

348. Letter from the hydrogeologist and project manager, Environmental Projects, SLEI,

to Laboratory Services, Environment, Roads and Infrastructure Department, Ville

de Montréal, Re: Results of the two sampling campaigns to characterize groundwater toxicity at Montreal Technoparc, 11 November 2002, in Environment Canada

Response to CEC Request for Information, Appendix 30.

349. Ibid., pp. 9-10.
MENV-prescribed limits on discharges into surface waters or sewer systems had not been exceeded at any time350 and that a clear correlation

existed between the concentration of ammonia nitrogen in the samples

and their toxicity.351

8.5.3 Investigation Report

At a June 2002 meeting on the adoption of a groundwater toxicity

assessment protocol for Technoparc, a City of Montréal representative

inquired as to the date when Environment Canada’s investigation

report would be finalized.352 According to Environment Canada, the

investigator was waiting for information regarding a lot number on the

cadastre and thereafter he would be submitting the report to his department head.353 In its investigation report, dated 22 April 2003, Environment Canada concluded that no charge could be laid for a violation of s.

36(3) of the Fisheries Act in relation to the deposit of deleterious substances into the St. Lawrence River opposite the Victoria Bridge, as it was

impossible to establish the origin and the pathway traveled by the substances in question. A chronology of the investigation and the investigation report itself (in both its draft version and its final version) are

reproduced herein as appendices.354

The Secretariat gathered information on the procedure to follow

when drafting an investigation report while enforcing section 36(3) of

the Fisheries Act. Environment Canada’s training manual outlines the

elements of an investigation report:355

The Investigation Report

Goals

– Administrative: statistics and others

– allow superiors to follow the progress of an investigation and do quality control;

INFORMATION OBTAINED BY THE SECRETARIAT 127

350. Ibid., p. 9.

351. Ibid. See also above, s. 8.3.1.2.

352. Ville de Montréal, Minutes, Re: Project to contain and recover hydrocarbons at

Technoparc/Groundwater toxicity assessment protocol, 13 June 2002, p. 9.

353. Ibid.

354. Appendices 7-9.

355. From 15-26 April 1991, Environment Canada conducted a training workshop for its

investigators on enforcement of the Canadian Environmental Protection Act and the

Fisheries Act at the Transport Canada Training Institute in Cornwall, Ontario. A document on investigations, with a section on investigation reports, was included in an

appendix to the training manual distributed to participants.
– informs your prosecutor about information gathered during the investigation;

– chronology of steps taken during different phases of the investigation.

Definition

– It is an account of the steps taken by the investigator during an investigation. This report must reflect as faithfully as possible:

– the facts (scene, clues detected...)

– testimony (persons interviewed)

– research (procedures, scientific analyses...)

– depositions (summaries of answers given by persons interviewed)

– appendices (photos, sketches...)

Characteristics

– concise – keep to the facts

– precise – leaves no room for uncertainty

– impartial – the truth

– thorough – no further explanation required

Rules to follow

Preconceived ideas have no place in an investigation report. Expressing

opinions is not forbidden however, there is the danger that an opinion will

be a preconceived idea. One must distinguish between a hypothesis and

an opinion. Opinion is directly related to a judgment on a subject, while a

hypothesis is linked to a supposition from which one draws a conclusion.

As it is not the investigator’s role to make judgments, opinions must be

avoided unless you can prove what you are saying.

On the other hand, expressing the opinion that a given witness is very nervous, unstable, dishonest, or otherwise, may help the prosecutor who is

reading your account of the facts to better prepare his examination of that

witness.

Furthermore, should counsel for the opposing party use your report during cross-examination, you will face, depending on the opinion expressed,

enormous difficulties especially if the opinions included in your report

were favorable to the accused at the beginning of your investigation.

Use simple and common vocabulary. Ease of understanding is based

on clear and straightforward expression. Eliminate unnecessary words.

Avoid dramatizing your report. Underlining is allowed if you wish to

128 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
attract the reader’s attention. That being said, only underline certain key

passages or expressions. As a rule, titles are underlined:

• Victim:

• Location:

• Date and time:

It is often necessary to add appendices: a statement, a letter, a document

may not square with the text but are essential for the reader.

Use upper-case letters (A, B, etc.) to identify appendices. Center the word

“Appendix,” including its identifying letter, along with the title on a title

page.

Based on its examination of the investigation chronology, the

investigation report (draft and final versions), and the training manual

for investigators, on 28 November 2006, the Secretariat addressed (written) questions concerning the investigation to the person who, at the

time of the investigation, was the manager of the Enforcement Division

at Environment Canada’s Environmental Protection Branch, Québec

Region. Canada answered these questions in writing on 8 January 2007.

The questions and answers are reproduced below.

Question 1: Why did the investigator recommend that you enquire

about the risk of civil liability in the context of enforcing

the law in the Technoparc file?

Answer 1: On his own initiative, during his investigation, the investigator sought to take into account many possibilities. In the

context of enforcing the Fisheries Act in the Technoparc file,

the risk of civil liability was the subject of several meetings

with the Ministry of Justice but was not subsequently considered for the purposes of the investigation.

Question 2: What is the relevance of the Koppers case356 (British

Columbia) with respect to the Technoparc situation?

Answer 2: For the same reasons mentioned previously, the investigator

was concerned about a civil suit against the Ministry.

INFORMATION OBTAINED BY THE SECRETARIAT 129

356. See Beazer East v. British Columbia (Assistant Regional Waste Manager), APPEAL

NO. 98WAS-01(b) [2000], online at <http://www.eab.gov.bc.ca/waste/98was01b.

htm> (date viewed: 14 May 2007); Beazer East v. British Columbia (Director of Waste

Management), APPEAL NOS. 2002-WAS-016(a) and 2002-WAS-017(a)[2002], online

at <http://www.eab.gov.bc.ca/waste/2002was016a_017a.pdf> (date viewed: 14

May 2007).
Question 3: In his chronology of the investigation, the investigator

noted the following on 5 December 2002:

“The City refuses to build the wall proposed by our

experts and as a result [the manager] asks me to

arrange it so that the factual data of the investigation

and its conclusions appear in the investigation

report.”

Please explain.

Answer 3: Environment Canada experts did not recommend the construction of a wall to the City of Montreal. They did, however,

raise questions as to the ability of the wall, proposed in the

SNC-Lavalin report (un-anchored wall), to intercept the

groundwater flowing towards the river. For this reason, the

Environment Canada experts instead proposed a characterization of the groundwater. [The manager] asked the investigator to ensure that these facts, which she deemed important,

be included in the investigation report.

Question 4: In his investigation chronology, on 13 March 2003, the

investigator noted the following:

“Meeting with [the manager] and [principal Environment Canada investigator] for the investigation

report. [The manager] explains the changes she

requests and gives me a copy of the corrections to

make. She will take care of correcting the letter of

response. Her corrections in file.”

Four days later, on 17 March 2003, the investigator

notes the following in the chronology of the investigation:

“Given the numerous changes to my investigation

report I can no longer recognize it as my own.”

Please explain.

Answer 4: The corrections [the manager] suggested to the investigator

during the writing of his investigation report essentially concerned syntax and details to add regarding certain facts.

130 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
Question 4.1: Why did the investigator doubt his appointment under

the Fisheries Act (allowing him to continue his functions

as investigator) in June and July 2002?

Answer 4.1: The reason for this doubt is not specifically related to the

Technoparc file. However, to respond concisely to the question, one must understand that in order to enforce the Fisheries Act, and in particular the part assigned to Environment

Canada, two appointments can be made by the Minister

of Fisheries and Oceans: fishery officer and inspector. The

investigator is appointed as an inspector, which allows him to

enforce section 36(3) of the Act.

Question 5: The Investigation Report (22 April 2003) concludes:

“The investigation is not able, because of its technical

and scientific complexity, to demonstrate and collect

the evidence necessary to allowing for the identification of the source of a specific deleterious substance

and the path it has taken to discharge into the river,

while at the same time eliminating all other possible

sources of contamination, and to connect this trajectory only to the lots that make up the Technoparc.”

The relevance of these elements, in the context of an

investigation under section 36(3) of the Fisheries Act, is

not apparent. Please explain the relevance of identifying the “source” and the “path” of a substance in proving an offence under section 36(3) of the Fisheries Act.

Answer 5: During an investigation related to a violation of section 36(3)

of the Fisheries Act, the investigator must collect evidence for

each element of the offense. In a prosecution, the Crown must

then prove each of these elements beyond a reasonable doubt.

Among them are the identity of the person who causes or

allows the deposit, along with the location where the deposit

occurs and the ability of the deleterious substance to reach

water frequented by fish. For these reasons, this information

is relevant to the file.

Question 6: In a memorandum sent to you by the investigator in this

file (Subject: Technoparc, Montreal, undated), he states

that he must take into account opinions and recommenINFORMATION OBTAINED BY THE SECRETARIAT 131
dations formulated by prosecutors in other, similar files

and the relevant caselaw to determine if it is possible to

collect all the elements of proof in order to lay criminal

charges under the Fisheries Act. Aside from the Compliance and Enforcement Policy, is there a framework

approach for enforcing section 36(3) of the Fisheries Act

in the specific context of contaminated sites in Canada?

Answer 6: No.

Question 6.1: In this same memorandum, the investigator summarizes several court decisions concerning civil liability

of the federal Crown with a view to assessing the risk

of Environment Canada’s being successfully sued for

non-enforcement of the Fisheries Act. He concludes:

“The investigator has observed that since the deposits

into the river were first brought to its attention, EC has

fulfilled its obligations and continues to do so to the

extent possible and given the powers attributed to it

under the law with respect to enforcing the FA.” Is it

normal for an investigator to render this type of legal

opinion concerning the potential liability of Environment Canada for non-enforcement of the law?

Answer 6.1: The response you wish to obtain does not concern the facts but

rather a value judgment on the investigator’s work. For this

reason, we will not answer this question.

8.6 Compliance promotion efforts following the decision by

Environment Canada not to seek charges

Under the Compliance and Enforcement Policy,

Personnel from the Department of Fisheries and Oceans and the Department of the Environment carry out many activities intended to promote

compliance, including developing guidelines and codes of practice and

providing technical advice. These personnel may review proposals and

referrals for new projects and provide technical advice on how to achieve

compliance. They may also provide expert testimony in court to support

prosecutions under the Fisheries Act.357

132 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

357. Compliance and Enforcement Policy, p. 6.
The Compliance and Enforcement Policy also provides:

The Department of Fisheries and Oceans and the Department of the Environment will continue to co-operate with other federal departments and

agencies, industry, and provincial and territorial governments to promote

the development of new technology in Canada for the protection of fish

habitat from physical impacts and for pollution prevention and control.

The departments will also promote the evaluation of such technology

used elsewhere, to facilitate its application to Canadian conditions.358

Council Resolution 04-05 instructed the Secretariat to gather information on compliance promotion efforts that followed Environment

Canada’s decision not to seek charges. This section of the factual record

contains the information gathered by the Secretariat in this regard.

In January 2003, the City of Montréal made a commitment to Environment Canada to adopt a two-stage approach. First, it would construct a partially anchored LNAPL containment barrier on the southern

boundary of its property, with the option of anchoring the barrier in the

bedrock along its entire length at a later date, should recovery of

LNAPLs fail to bring groundwater quality into compliance with the

law.359 Thereafter, the City distanced itself from the action plan to which

it had agreed, using legal and technical arguments in an attempt to

INFORMATION OBTAINED BY THE SECRETARIAT 133

358. Ibid., p. 14.

359. Memo from the Director, Intervention and Restoration to the Regional Director,

Environmental Protection Branch, Québec Region, Environment Canada, Re:

Technoparc; informal meeting (28 January) between Ville de Montréal, MENV, and

EC, 6 February 2003: “The City of Montréal made a succinct presentation of the

revised version of its project. The City undertakes to ‘anchor’ the wall along 40% of

its total length, half of which would be anchored continuously (an EC request

approved by MENV) in the sector where groundwater analysis has exhibited acute

toxicity. The City undertakes to modify the configuration of the pumping wells initially designed to recover LNAPLs in order to permit the installation of equipment

for the recovery of dissolved-phase contaminants as well. The City agrees to use

some of the multiple-use wells for groundwater monitoring in 2004. The City

undertakes to effect such monitoring at the ends of the continuously anchored section of the wall (an EC proposal), in order to verify whether the accumulated dissolved-phase contaminants, after diversion by this section of the wall, are in

compliance with our regulatory requirements. Should these “accumulated” dissolved-phase contaminants prove toxic under section 36(3) of the Fisheries Act, the

City has obtained assurances from its consultant, SNC-Lavalin, that it would be

possible to anchor the wall along its entire length during an eventual phase II. The

City of Montréal agreed to reactivate the Technical Committee (Ville de Montréal,

EC, MENV) to request that it define the parameters of this environmental monitoring. The MENV insisted that the ‘CA’ [certificate of authorization issued under the

Environment Quality Act (Québec)] include the monitoring criteria and that these

take into account federal and provincial concerns.”
secure financial and other commitments from the multiple actors in the

file before embarking on any project at all.360

From a legal perspective, the City claimed that Environment Canada’s expectations were unclear: on one hand, EC seemed willing to

accept that anchoring of the hydraulic barrier be deferred, but on the

other hand, it seemed quite insistent that it would not tolerate the

discharge of deleterious substances in the long term.361 The City and its

consultants claimed that, if it was nearly certain that sooner or later

groundwater containment would be required, it would be less costly

to proceed directly with the construction of a barrier that would be

anchored in the bedrock throughout its entire length.362 Furthermore,

the City and its consultants asserted that, should the contained groundwater satisfy the City of Montréal’s effluent discharge standards (which

appeared to be the case, based on pumping tests), this discharge option

134 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

360. Environment Canada, “Minutes of meeting of 28 August 2003 with the City of

Montréal and Technoparc file partners”: “City of Montréal proposal: According to

the City of Montréal, for reasons essentially having to do with contractual difficulties and cost considerations, the City is finalizing a call for tenders to commission a

firm to conduct a comprehensive review of the Technoparc site action strategy. This

means that the action scenario developed by SNC-Lavalin will be revisited and possibly modified or replaced. The bid document will be divided into three main components: LNAPLs, dissolved-phase contaminants, and treatment of the latter. This

bid document will be submitted to EC and MENV for comment on September 5. The

City will also draft a memorandum of understanding on the sharing of financial

responsibilities with the three neighbors (CN, VIA Rail and JCCBI). This document

will be forwarded to them for comment on September 5. The City indicated that it

was not particularly concerned by the media coverage of the issue, nor by the complaint filed with the CEC. The City maintained that it had not received a clear signal

from the other levels of government as to the obligation to treat the groundwater

and the environmental objectives to be attained. The result, according to its experts,

is to introduce uncertainty into the definition of the appropriate project. Thus,

despite past discussions and agreements in principle on the project, the City is not

entirely convinced that it must take action and proceed with groundwater treatment. Environment Canada’s position: we will receive and comment on the bid

documents, principally regarding the approach and objectives cited pertaining

to LNAPLs and dissolved-phase contaminants, but under no circumstances will

we approve its contents and/or approach. However, in our opinion the present

approach constitutes a step backward from the commitments made by the City in

February 2003. We clearly indicated to the City the urgency of providing us with

documents specifying the nature and scope of the project, as this would enable us to

1) make a ruling on the City’s willingness to act and 2) respond, eventually, to the

complaint submitted to the CEC, as well as to environmental groups and the

media.”

361. SLEI, “Interception des phases flottantes d’hydrocarbures et des eaux souterraines

– Site de l’ancien Adacport – Document d’orientation,” pp. 9-10.

362. Ibid., pp. 10, 13.
could become the permanent solution.363On this issue, the City’s consultants underscored two points: (i) the characteristics of the water pumped

in large quantities on the site as a whole (during pumping tests) does not

reflect the characteristics of specific wells on the site, taken individually;

(ii) if competent authorities should object to discharging the groundwater into the sanitary sewer, a legal opinion should be obtained.364

Furthermore, according to the City and its consultants, since Environment Canada’s investigation had been unable to identify the party or

parties responsible for the contamination,365 if Environment Canada

were to require the City to contain the groundwater (and treat it, if need

be366), then it would be up to all of the sector’s stakeholders to contribute

to financing such a project.367

INFORMATION OBTAINED BY THE SECRETARIAT 135

363. Ibid., p. 21.

364. Ibid.

365. Ibid., p. 10.

366. See in this regard MCEBR, “Encadrement et assistance technique dans le choix des

technologies pour le traitement des eaux souterraines du Technoparc de Montréal

– Proposition de services du CEMRS présentée à Développement économique

Canada” (Guidance and technical assistance in the choice of technologies for the

treatment of groundwater at Montreal Technoparc – MCEBR offer of services submitted to Canada Economic Development), September 2005, p. 2: “Jacques Cartier

and Champlain Bridges Inc. (JCCBI), owner of the western part of the site, has commissioned Tecsult to assess the situation and identify solutions for treatment of

groundwater migrating from its site. The solution proposed in 2005 opted for biological treatment prior to sewer discharge–a choice predicated on the assumption

that the City of Montréal’s wastewater treatment plant would remove the toxic

elements.”

367. See Ville de Montréal, Petite histoire d’une occupation fluviale, Appendix 10, September 2004. See also Ville de Montréal, Master Plan (2004), Part I, ch. 2, 2.7, Objective 17,

“Ensure the optimal management of resources in an urban context,” Action 17.3,

“Ensure efficient management of the water and wastewater infrastructure;” the

City undertakes, notably, to “take the following corrective actions with respect to

the storm and sanitary sewer systems: Construct retention basins in areas where

collector sewers overflow during heavy rains; fix improper (or crossed) connections

of sanitary sewer pipes; complete the few missing connections of sanitary sewers to

interceptors; reduce the discharges of problematic industrial contaminants into the

sewers at their source; disinfect wastewater at the treatment plant”; Action 17.5,

“Pursue the rehabilitation of contaminated sites with government funding”; Action

17.6, “Give priority to rehabilitating contaminated sites in the vicinity of certain

metro and commuter train stations, as well as in areas to be transformed.” See also

letter from the Regional Director, MDDEP, to the Assistant City Manager, Infrastructure, Transportation and Environment Department, Ville de Montréal, Re:

New project on Montreal’s former Adacport site, 23 September 2004: “Furthermore,

the City of Montréal Executive Committee resolution of 7 April 2004 mentions that

commencement of work is tied to federal government financial participation. The

City of Montréal has thus presented a request to Environment Canada for a federal

government contribution.”
From a technical perspective, the City raised the possibility of

moving the project south of its property, closer to the riverbank, which

would shorten the period during which transitional measures would be

required to stay in place to trap hydrocarbons discharging to the river.368

On this issue, according to the City, one needed to take into account the

intentions of Société du Havre, which was considering the possibility of

eventually relocating the Bonaventure Expressway, to restore public

access to the waterfront.369 Moreover, the City and its consultants

pointed out that the groundwater samples taken on the far shoulder of

the Bonaventure Expressway (owned by JCCBI) had not been acutely

toxic to fish.370

In the spring of 2004, the City seemed ready to proceed with a new

initiative (recovery of LNAPLs, containment and discharge of groundwater into municipal sewer without treatment). However, the City’s

Executive Committee adopted a resolution tying the start of work to

financial participation from the federal government, which, as of the end

of September, had yet to advise the City of its intentions.371

In the autumn of 2004, a multiparty technical committee agreed

on the need for improvement, before January 2005, of the temporary

measures for recovering hydrocarbons seeping into the St. Lawrence

River.372 At the same time, it was decided that it would be worth doing

136 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

368. It has been estimated that the Bonaventure Expressway area located in the vicinity

of the Victoria Bridge, which is owned by JCCBI, contains 180,000-350,000 liters of

hydrocarbons; MCEBR, “Encadrement et assistance technique dans le choix des

technologies pour le traitement des eaux souterraines du Technoparc de Montréal

– Proposition de services du CEMRS présentée à Développement économique

Canada,” p. 2. See also Ville de Montréal, First meeting of Technical Committee

(12 August 2004), Minutes, p. 1.

369. Ville de Montréal, First meeting of Technical Committee (12 August 2004), Minutes,

p. 1, and Ville de Montréal, Seventh meeting of Technical Committee (4 April 2005),

Minutes, p. 3, Point 3 d) Pre-feasibility study on moving the Bonaventure Expressway (JCCBI/Société du Havre): “SNC-Lavalin was commissioned to conduct this

study in mid-February. It is financed by Société du Havre and administered by

JCCBI; Ville de Montréal, the Québec Ministry of Transport (Ministère des Transports

du Québec–MTQ) and MDDEP are also participating in this study in connection with

certain, specific issues.”

370. SLEI, “Interception des phases flottantes d’hydrocarbures et des eaux souterraines

– Site de l’ancien Adacport – Document d’orientation,” p. 20. See also Ville de

Montréal, Seventh meeting of Technical Committee (4 April 2005), Minutes, p. 3.

371. Letter from Regional Director, MDDEP, to the Assistant General Manager, Infrastructure, Transportation and Environment Department, Ville de Montréal, Re:

New project on former Adacport site in Montreal, 23 September 2004.

372. Ville de Montréal, Second meeting of Technical Committee (26 August 2004), Minutes, p. 6.
a complementary assessment of the Bonaventure Expressway area

(owned by JCCBI). On this issue, MDDEP and the City questioned the

logic of Environment Canada’s recommendation to focus groundwater

sampling in the vicinity of the booms.373 According to Environment

Canada, “since the flow of oil is greater where the booms are located, the

same probably holds true for the groundwater. It follows that there

should be a greater focus on groundwater characterization in this sector.”374 As it happens, the groundwater analysis indicated acute toxicity

in three out of five wells.375 The City commissioned Dessau-Soprin Inc.

to propose improved hydrocarbon recovery measures.376The solution, a

floating barrier (i.e., no groundwater containment) of approximately

160 meters in length, was announced in the spring of 2005.377 In response

to Environment Canada and MDDEP queries, the City and its consultant

explained that this measure was not designed for future integration into

any comprehensive solution.378 In June 2005, the City announced that

the contract for the construction of this “screen” had been awarded to

Services de location Ste-Croix.379

At the time, the City of Montréal was still receiving MDDEP funding via the Revi-Sols program.380 This program was originally scheduled to expire on 31 March 2005, but the Government of Québec granted

INFORMATION OBTAINED BY THE SECRETARIAT 137

373. Ville de Montréal, Third meeting of Technical Committee (16 September 2004),

Minutes, p. 4, and Ville de Montréal, Second meeting of Technical Committee (26

August 2004), Minutes, p. 6.

374. Ibid.

375. Ville de Montréal, Fifth meeting of Technical Committee (18 November 2004), Minutes, p. 3.

376. Ville de Montréal, Fourth meeting of Technical Committee (28 October 2004), Minutes, p. 2. See also Ville de Montréal, Third meeting of Technical Committee (16 September 2004), Minutes, p. 5.

377. Sébastien Rodrigue, “Produits toxiques au Technoparc” (Toxics at Technoparc), La

Presse, 2 April 2005; Jeanne Corriveau, “Technoparc – Un mur de béton pour

protéger le fleuve” (Concrete wall at Technoparc to protect the river), Le Devoir, 27

May 2005.

378. Ville de Montréal, Fourth meeting of Technical Committee (28 October 2004), Minutes, p. 2, and Ville de Montréal, Fifth meeting of Technical Committee (18 November 2004), Minutes, pp. 1-2.

379. Ville de Montréal, Project to intercept and recover LNAPLs and groundwater in the

former Adacport sector – Minutes, 15 June 2005, p. 2.

380. Letter from the Regional Director, MDDEP, to the Assistant General Manager, Environment, Roads and Infrastructure Department, Ville de Montréal, Re: Urban contaminated sites rehabilitation program – Sixteenth call for projects, 14 June 2002,

and to the Government of Québec, Treasury Board, T.B. 203104, 6 December 2005,

Re: “Request for authorization of changes to the normative framework of the

Revi-Sols Program, Phase I, concerning Montreal Technoparc site.”
the City an exceptional, 33-month extension (until 31 December 2008) to

incur eligible expenses.381 As for the federal government, JCCBI was

trying to obtain funding under a federal contaminated sites remediation

program.382 In November 2005, Canada Economic Development383

announced a contribution of C$1.6 million to an MCEBR project to evaluate groundwater treatment technologies for the Technoparc sector.384

The sector under study has a surface area of 92 hectares (10.4 million

square feet)385 (see Figure 12).

138 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

381. Ibid.

382. See Federal Bridge Corporation Limited, Annual Report 2005-2006, p. 31: “The JCCBI

contaminated lands along the Bonaventure Expressway: a feasibility study was carried out in July 2005 to determine the most appropriate mitigation measures to be

implemented. JCCBI has registered these contaminated sites with the Treasury

Board Secretariat’s Federal Contaminated Sites Inventory. JCCBI has also applied to

receive special funding in 2006-2007 under the Federal Contaminated Sites Action

Plan (FCSAP) to carry out feasibility studies,” online at <http://www.federal

bridge.ca/Portals/0/annual_reports/fbcl_report_2005-06_eng.pdf> (date

viewed: 30 January 2007).

383. Ville de Montréal, Ninth meeting of Technical Committee (8 September 2005), Minutes (draft), p. 3: “At the suggestion of Environment Canada, the Montreal Center of

Excellence in Site Remediation (CEMRS) got ready to present a proposal to Canada

Economic Development (CED—the eventual payer) to carry out a study on groundwater in the former Adacport site, seeking to define problematic and possible solutions that would help to narrow the choice of treatment technology to be

recommended.” See also MCEBR, “Encadrement et assistance technique dans le

choix des technologies pour le traitement des eaux souterraines du Technoparc de

Montréal – Proposition de services du CEMRS présentée à Développement

économique Canada” (Coaching and technical assistance in the choice of technologies for the treatment of groundwater at the Montreal Technoparc – MCEBR offer of

services submitted to Canada Economic Development), September 2005, p. 3.

384. Canada Economic Development, “Montreal’s Technoparc district: Government

of Canada awards $1.560 million to the Centre d’excellence de Montréal en réhabilitation de sites (CEMRS)” (News release – 24 November 2005). See also the letter

from the General Director, MCEBR, to the Director of Canada Economic Development, Island of Montreal, Re: Proposal on coaching and technical assistance services

in the selection of groundwater treatment technologies at the Montreal Technoparc,

4 October 2005.

385. MCEBR, “Sélection de technologies de traitement des eaux souterraines du secteur

situé entre les ponts Champlain et Victoria, en bordure du fleuve – Localisation du

secteur à l’étude” (Selecting groundwater treatment technologies for the riverbank

section between the Champlain and Victoria bridges), 4 December 2006, online at

<http://www.cemrs.qc.ca/francais/pdf/cartesecteur.pdf> (date viewed: 13 February 2007). See also Vicky Sharpe, “Sustainable Solutions,” 5 September 2006,

online at <http://www.aboutremediation.com/render/pageRender.asp?item

code=AR-NWS-LNIN&itemid=3255> (date viewed: 3 April 2007).
Figure 12 Location of area under study (MCEBR)

In 2005, preliminary studies were initiated as part of an MCEBR

project to identify the main physico-chemical parameters responsible

for groundwater toxicity in the Technoparc sector. Tests were conducted

using rainbow trout, a method authorized for the purpose of enforcing

section 36(3) of the Fisheries Act.386 One objective was to determine the

INFORMATION OBTAINED BY THE SECRETARIAT 139

386. MCEBR, “Secteur régional du Technoparc de Montréal – Développement et adaptation de technologies de traitement des eaux souterraines” (Montreal Technoparc

regional sector – Development and adaptation of groundwater treatment technologies), 1 Le Défricheur 6 (2006). See also Ville de Montréal, Ninth meeting of Technical

Committee (8 September 2005), Minutes, p. 2: “[Point] 5 – Study on the relationship

between the groundwater toxicity and various physicochemical parameters (Environment Canada). Complementary laboratory tests were conducted to ascertain

which physicochemical parameters contributed to the observed groundwater toxicity. Since pH increased with oxygenation in the trout testing, constant pH tests

were carried out along with standard tests on water from three (3) JCCBI wells.

Increased pH did not significantly affect the observed toxicity. In certain cases,

however, the observed toxicity cannot be associated solely with ammonia nitrogen,

as rapid trout mortality is observed at relatively weak concentrations of this parameter. Therefore, ammonia nitrogen is not the only parameter at issue, and certain

metals seem to contribute to the observed trout toxicity. Given the variability

observed from one well to another, it is difficult to identify the synergies with other

parameters.”
extent to which groundwater under the Bonaventure Expressway is

affected by the City’s property, which is located directly upstream,

hydraulically, compared to groundwater coming from the JCCBI properties, which migrates eastward, in parallel with the St. Lawrence,

through the riprap of the Bonaventure Expressway.387

At the time, it was thought that the cost of a comprehensive solution to the problem of discharges of contaminated and toxic effluents

into the St. Lawrence River from the Technoparc sector would be in the

range of C$40-60 million.388 In January 2006, during a federal election

campaign, the federal Liberal Party announced its intention to spend

C$25 million to clean up Technoparc.389 As regards the installation of a

140 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

387. Quebec, Contaminated sites rehabilitation program – Financial assistance eligibility application form – General information, 29 October 1999, revised 16 November

1999: “The principal results from previous studies are as follows: [...] The groundwater under the Technoparc generally flows towards the Bonaventure Expressway;

moreover, the riprap under the Bonaventure Expressway creates a preferential

pathway toward the east (i.e., towards the Victoria Bridge), parallel to the river. The

depth of the water table under the Technoparc varies between 4.6 and 12.0 meters.”

See also Ville de Montréal, Third meeting of Technical Committee (16 September

2004), Minutes, p. 1: “Point 2 Definition of the environmental issues – missing information: Flow of groundwater and LNAPLs, and discharges into the river;

Groundwater contamination (physical chemistry and toxicity).”

388. MCEBR, “Encadrement et assistance technique dans le choix des technologies pour

le traitement des eaux souterraines du Technoparc de Montréal – Proposition de

services du CEMRS présentée à Développement économique Canada,” September

2005, p. 13.

389. See Liberal Party of Canada (Québec), “Jean-C. Lapierre reflects on his record and

makes clear commitments for the future of Outremont and Montreal,” 3 January

2006: “Our environment is dear to us all and I commit myself to work for the decontamination of federal lands around the Montreal Technoparc in order to restore

Montrealers’ access to the St. Lawrence River,” online at Parti libéral du Canada

(Québec) <http://www.qc.liberal.ca/fr/presse/communiques.aspx?ID=554>

(date accessed: 26 January 2007). See also Liberal Party of Canada (Québec), “Speech

by Prime Minister Paul Martin” (undated): “And that is why I am announcing today

that after January 23rd, working with the provinces, a Liberal government will

invest $1-billion over 10 years to clean up toxic hotspots along the St. Lawrence

River and around the Great Lakes, which together make up the world’s largest

freshwater ecosystem. By taking action, we will better protect our water and our

wildlife, make our waterfronts more vibrant and healthy, and ensure that the revitalization of these ecosystems stands as our collective legacy.

“Half the overall investment – some $500-million – will be devoted to restoring

degraded and threatened areas throughout the Great Lakes and St. Lawrence,

including specific sites such as Hamilton harbour. As well, there will be $25-million

to help clean up the Technoparc site here in Montreal, which for close to a century

was part of a dump for industrial and household waste,” online at Parti libéral du

Canada (Québec) <http://www.qc.liberal.ca/fr/presse/discours.aspx?ID=568>

(date accessed: 26 January 2007).
system to contain, recover and treat groundwater in the Technoparc sector, Canada Economic Development is the agency in Québec responsible

for selecting projects eligible for federal funding under Infrastructure

Canada programs.390 In its 2007 budget, the federal government

announced the creation of a new infrastructure fund, “Building Canada.” This fund’s resources are to be allocated among the provinces and

territories on a per capita basis to support large scale wastewater management, brownfield redevelopment, and other types of projects.391

8.7 Information on Environment Canada’s actions and technical

advice and their relevance to enforcement efforts in the

Montreal Technoparc sector

Council Resolution 04-05 [French version] instructed the Secretariat to collect information on Environment Canada’s actions and technical advice and their relevance to compliance promotion efforts in the

Montreal Technoparc sector. On 28 November 2006, the Secretariat

addressed a number of questions to Canada concerning compliance

promotion with respect to Technoparc. On 8 January 2007, Canada

answered in writing. The questions and answers are reproduced below.

Concerning compliance promotion activities related to contamination of the St. Lawrence River coming from the Technoparc:

Question 7.1: Please indicate the costs of these activities to the federal

government, in human, financial and other resources,

since 1991 (in total, with a breakdown of expenses).

Answer 7.1: Collecting information on the resources dedicated to compliance promotion since 1991 would require extensive research

and take more time than the deadline provided. However,

since 2002, we estimate having spent 1.25 person-years at the

technical level (senior engineer and biologist) and 0.5 person-years at the management and administrative support

level. As regards analyses of bioassays from the summer of

2002 carried out at the St. Lawrence Centre of Environment

Canada, this accounts for an amount of C$17,300.

INFORMATION OBTAINED BY THE SECRETARIAT 141

390. See “Infrastructure Programs,” online at <http://www.infrastructure.gc.ca/ippi/index_e.shtml> (date viewed: 10 May 2007).

391. See Canada, Budget 2007 – Aspire to a Stronger, Safer, Better Canada, c. 5, “A Stronger

Canada through a Stronger Economy: Infrastructure Advantage,” online at

<http://www.budget.gc.ca/2007/bp/bpc5be.html> (date viewed: 10 May 2007).
Question 7.2: Why did the federal government not object, in 1996,

to CN intercepting only the LNAPLs coming from

its property, hydraulically upstream from the Technoparc?

Answer 7.2: Environment Canada does not oppose projects that present a

reduction of environmental risks. In this context, there were

no reasons that would have justified Environment Canada’s

opposing CN’s project to intercept and remove free-phase

petroleum hydrocarbons at the boundary of its property.

Question 7.3: Knowing that a significant portion of the contamination

on the Montreal Technoparc site comes, in all likelihood, from operations carried out by CN in its railyard

over several decades, why did the federal government

not insist, while the company was still a Crown corporation, that the company contribute to funding remedial action or environmental risk management at the

Technoparc?

Answer 7.3: According to the conclusions of the investigation led by Environment Canada:

The analysis of the information obtained leads the Ministry to

conclude that the diverse array of activities that contributed

historically to the soil contamination, along with the complexity of the hydrology of the sector, taken as a whole, do not

allow for the identification of the specific source of deleterious

substances flowing into the river. The investigation was thus

not able to collect the elements of proof that are needed to

attribute the discharges into the river to one or more responsible parties and to identify these parties.

Between 1990 and 1995, the National Contaminated Sites

Remediation Program (NCSRP) funded rehabilitation projects for priority orphan sites in Canada (with matching

funds from the provinces) and, to a lesser degree, for federal

ministries. The Federal Contaminated Sites Action Plan

(FCSAP) approved in April 2005 funds contaminated site

rehabilitation projects for federal ministries and agencies and

for consolidated Crown corporations responsible for contamination. The criteria of the two funding programs mentioned

above made federal business corporations non-admissible for

federal funding.

142 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
Question 7.4: Why did the federal government not object when, during its value analysis of 1999, the City of Montreal opted

for a solution that aimed only at intercepting floating-phase deleterious substances coming from the

Technoparc?

Answer 7.4: The value analysis (Valorex Report, June 1999) recommended the scenario of a partially penetrating interception

wall to solve the problem of petroleum hydrocarbons flowing

into the St. Lawrence River. The Valorex Report recommended a complementary characterization of the Technoparc

and the development of a groundwater flow assessment and a

mass balance. In March 2002, the City of Montreal submitted

the complementary characterization report (SNC-Lavalin) to

Environment Canada and the pre-project study for building

a partially penetrating wall to intercept petroleum hydrocarbons (SNC-Lavalin). It was thus only in March 2002, following review of the SNC-Lavalin reports, that Environment

Canada learned of the potential toxicity of the groundwater.

It was therefore only from March 2002 that the Ministry

notified this problem to the City of Montreal and suggested

that the solution the City put forward take into account the

issue of the potential toxicity of the groundwater.

Question 7.5: Why did Environment Canada begin to insist that the

groundwater be treated starting when citizens complained about it, in 2002?

Answer 7.5: As indicated in the response to question 7.4, Environment

Canada only learned of the potential toxicity of the groundwater in March 2002. The sampling campaign conducted by

the City of Montreal in the summer of 2002 and the results

obtained from the bioassays confirmed that the groundwater

was toxic.

Question 7.6: What is the purpose of conducting a research and

development project to treat the Technoparc’s groundwater when, according to our experts, there are offthe-shelf treatment technologies already available on

the market, especially in the United States?

Answer 7.6: It is important to remember that the decision regarding which

technology to choose rests with the City of Montreal. From a

technical standpoint, it is generally accepted that for probINFORMATION OBTAINED BY THE SECRETARIAT 143
lems of this scale, treatability tests in the laboratory and pilot

tests are required to confirm working hypotheses.

Question 7.7: Has Environment Canada set a deadline for putting in

place a structure to stop the deposit of deleterious substances into the St. Lawrence River from the sector of

the Montreal Technoparc?

Answer 7.7: The Fisheries Act and the Enforcement Policy provide that

persons subject to the Act must take the necessary measures

to halt the deposits as soon as possible under the circumstances.

9. Closing Note

Factual records provide information regarding asserted failures to

effectively enforce environmental law in North America that may assist

submitters, the NAAEC Parties and other interested members of the

public in taking any action they deem appropriate in regard to the matters addressed. Pursuant to Council Resolution 04-05, this factual record

provides information relevant to a consideration of whether Canada is

failing to effectively enforce section 36(3) of the Fisheries Act in connection with discharges of deleterious substances into the St. Lawrence

River from the Montreal Technoparc sector, located along the Bonaventure Expressway, between the Victoria and Champlain Bridges.

Section 36(3) makes it an offence, punishable by fines and/or prison

terms, to allow the discharge of a deleterious substance into water frequented by fish or in any place where such substance may enter water

frequented by fish, unless authorized by a federal regulation.

Historically, the area under study was farmland, and the bank of

the St. Lawrence in Pointe-Saint-Charles was a vast marsh known for

attracting large flocks of geese. In the mid-nineteenth century, a railyard

was built on the shore, one of the largest and oldest in Canada’s history.

South and west of the railyard, the marsh was landfilled with garbage,

construction debris, and earth brought from elsewhere. By the late

1980s, the landfilled area, which extends approximately 500 meters into

the river, was about two kilometers long, between the two bridges, and

the layer of fill and other materials that had been dumped there was

between four and twelve meters deep. On official plans, much of the area

is still designated as being the St. Lawrence River.

In 1989, the federal and provincial governments sold part of the

area south of the railyard to the City of Montreal for redevelopment as a

144 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
hi-tech park. Since both the federal and provincial governments claimed

ownership of the land, both deeds of sale refer to the same lot numbers.

As part of the sale, the City accepted environmental responsibility for

the land and promised to defend the federal and provincial governments against any environmental claims resulting from the condition of

the soil and groundwater there. To obtain provincial authorization to

redevelop the former landfill, Montreal promised to deal with pockets of

oil that were known to be floating under the surface, and to monitor

groundwater quality. The volume of oil — a broken diesel line is partly

to blame — is now estimated at between four and eight million liters

(enough to fill about three Olympic-size swimming pools). It is estimated that the Technoparc contains between one and two tons of PCBs,

some of which have been released from their containers (e.g., discarded

transformers) through the presence of diesel fuel which acts as a solvent.

When Technoparc development began in the early 1990’s, oil was

noticed seeping from the shore into the river. Environment Canada set

up temporary booms and absorbent pads to contain the oil along the

shore, and the accumulated oil was pumped and taken offsite. CN and

the City of Montreal agreed to pay operating and maintenance costs for

these temporary measures. Because of ice, the booms had to be removed

in the winter. In 1997, CN stopped paying; it had set up a system of

pumping wells at the southern boundary of the railyard to intercept and

remove the oil before it migrated downhill to the Technoparc. Thereafter, Montreal stopped maintaining the booms and pumping oil on the

shore. In 1998, Environment Canada enforcement personnel issued a

warning against Montreal. Also in 1998, Environment Canada program

personnel tabled a project proposal for a biobarrier to intercept the oil

and contaminated groundwater migrating from the Technoparc to the

St. Lawrence. This barrier was not built. Thereafter, the City of Montreal

resumed the temporary pumping operations. After a “value analysis

exercise” in 1999, Montreal announced that it would install a permanent

oil recovery system at the southern boundary of its property. Design

specifications for the project were ready in March of 2002. In April of

that year, Environment Canada received a letter from environmental

groups, along with results from laboratory analyses of water samples

taken from the river, alleging that deleterious substances were seeping

into the St. Lawrence along the shore opposite Technoparc in violation

of section 36(3) of the Fisheries Act.

Environment Canada opened an investigation in April 2002. That

fall, Environment Canada analyzed groundwater samples from the

Technoparc site and found them to be toxic to fish. The City indicated

that it was prepared to optimize the proposed system in order to stop oil

CLOSING NOTE 145
and contaminated groundwater from migrating off its property, but

it sought assurances that no contamination was migrating onto the

Technoparc from upstream properties occupied by CN and VIA Rail

Canada, or from neighbouring lands owned by the federal Crown corporation that manages the Bonaventure Expressway. In June 2002, the

federal environment minister assured the City that Environment Canada officials were contacting all parties to ensure their cooperation. In

2003, CN obtained federal and provincial funding to pilot test a groundwater treatment system in the railyard. VIA Rail Canada, which has

been operating a maintenance center northwest of the Technoparc since

1987, replaced the entirety of its diesel supply and containment systems.

And Jacques Cartier and Champlain Bridges Inc. tested its own groundwater, west of the Technoparc, and found it to be toxic. In April 2003,

Environment Canada terminated its Fisheries Act investigation, concluding that it was not possible to determine the source and pathway of substances discharging to the river.

Thereafter, Montreal continued to insist on obtaining financial

support from all of the area’s stakeholders. The City’s Executive Committee made acceptance of any remediation proposal conditional upon

obtaining federal funding. The City underscored the fact that Environment Canada’s investigation had not been successful in identifying who

was responsible for the discharges to the river. Furthermore, the City

and its environmental consultants pointed out that groundwater in the

Technoparc sector meets the City of Montreal’s sewer discharge criteria.

They argued that rerouting groundwater from the Technoparc to the

municipal sewer would be a waste of money and would only result in

the pollution entering the river at the other end of the island, since the

wastewater treatment process used by the City cannot completely eliminate the toxicity of the groundwater from the Technoparc sector. In 2007,

a project was underway to pilot test onsite groundwater treatment technologies for the Montreal Technoparc sector.

146 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
APPENDIX 1

Council Resolution No. 04-05

(20 August 2004)

Montreal, 20 August 2004

COUNCIL RESOLUTION 04-05

Instruction to the Secretariat of the Commission for Environmental

Cooperation Regarding the Assertion that Canada is failing to effectively enforce sections 36(3) of the federal Fisheries Act(SEM-03-005).

THE COUNCIL:

SUPPORTIVE of the process provided for in Articles 14 and 15 of

the North American Agreement on Environmental Cooperation (NAAEC)

regarding submissions on enforcement matters and the preparation of

factual records;

CONSIDERING the above noted submission, filed on 14 August 2003 by

Waterkeeper Alliance, Lake Ontario Waterkeeper, Société pour Vaincre

la Pollution, Environmental Bureau of investigation and the Upper St.

Lawrence Riverkeeper/Save the River!, and the 14 November 2003

response provided by the Government of Canada;

HAVING REVIEWED the 19 April 2004 notification to Council by the

Secretariat recommending the development of a factual record with

respect to the submission;

HEREBY UNANIMOUSLY DECIDES TO:

INSTRUCT the Secretariat to prepare a factual record in accordance with

Article 15 of the NAAEC and the Guidelines for Submissions on Enforcement Matters under Articles 14 and 15 of the North American Agreement on

Environmental Cooperation in respect of the following items arising in the

context of Submission SEM-03-005 with regard to alleged failure to

effectively enforce section 36(3) of the Fisheries Act:

• facts surrounding Environment Canada’s inspections, before and

after, the issuance of a warning in 1998;

• facts surrounding Environment Canada’s 2002-2003 investigation,

in response to a request from members of the public;

• characteristics and fate of the contamination of the Montreal Technoparc sector;

• results of the oil containment and pumping system(s) at the Montreal

Technoparc sector;

APPENDIX 1 149
• the ecotoxicological study carried out in 2002;

• information on the division of ownership of the Montreal Technoparc

sector and its relevance to enforcement efforts;

• information on Environment Canada’s technical actions and advice

and its relevance to enforcement efforts at the Montreal Technoparc

sector; and

• compliance promotion efforts following the decision by Environment

Canada not to seek charges.

DIRECT the Secretariat to provide the Parties with its overall work plan

for gathering the relevant facts and to provide the Parties with the

opportunity to comment on that plan; and

TO DIRECT the Secretariat to consider, in developing the factual record,

whether the Party concerned “is failing to effectively enforce its environmental law” since the entry into force of the NAAEC on 1 January 1994.

In considering such an alleged failure to effectively enforce, relevant

facts that existed prior to 1 January 1994, may be included in the factual

record.

APPROVED BY THE COUNCIL.

150 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
APPENDIX 2

Overall Plan to Develop a Factual Record

(16 September 2004)

Secretariat of the Commission

for Environmental Cooperation

Overall Plan to Develop a Factual Record

Submission I.D.: SEM-03-005 / Montreal Technoparc

Submitter(s): Waterkeeper Alliance

Lake Ontario Waterkeeper

Société pour Vaincre la Pollution

Environmental Bureau of Investigation

Upper St. Lawrence Riverkeeper/Save the River!

Party: Canada

Date of this plan: 16 September 2004

Background

On 14 August 2003, the Submitters identified above presented

to the Secretariat of the Commission for Environmental Cooperation

(CEC) a submission in accordance with Article 14 of the North American

Agreement on Environmental Cooperation (NAAEC). The submission,

along with supporting materials, asserts that Canada is failing to effectively enforce section 36(3) of the federal Fisheries Act against the city of

Montreal in connection with the discharge of contaminated groundwater from the city’s Technoparc site to the Saint Lawrence River. Section

36(3) of the Fisheries Act prohibits the deposit of a deleterious substance

into water frequented by fish unless the deposit is authorized by regulation.

On 15 September 2003, the Secretariat determined that the submission met the requirements of Article 14(1) of the NAAEC and requested

a response from the Party concerned (Canada) in accordance with Article 14(2). Canada submitted its response on 14 November 2003. The

response explains Environment Canada’s responsibilities in regard to

administration of section 36(3) of the Fisheries Act, presents summary

information concerning the history and environmental condition of the

sector of the Montreal Technoparc, and describes enforcement and

compliance promotion actions undertaken by Environment Canada in

regard to deposits of deleterious substances from the sector of the

Montreal Technoparc into the Saint Lawrence River. On 19 April 2004,

APPENDIX 2 153
the Secretariat informed the CEC Council that it considered that the

submission, in light of Canada’s response, warranted developing a factual record.

On 20 August 2004, in Council Resolution 04-05, the Council

decided unanimously to instruct the Secretariat to prepare a factual

record in accordance with Article 15 of the NAAEC and the Guidelines for

Submissions on Enforcement Matters under Articles 14 and 15 of the

NAAEC (Guidelines) in respect of the following items arising in the context of the submission with regard to the alleged failure to effectively

enforce section 36(3) of the Fisheries Act:

• facts surrounding Environment Canada’s inspections, before and

after, the issuance of a warning in 1998;

• facts surrounding Environment Canada’s 2002-2003 investigation, in

response to a request from members of the public;

• characteristics and fate of the contamination of the Montreal Technoparc sector;

• results of the oil containment and pumping system(s) at the Montreal

Technoparc sector;

• the ecotoxicological study carried out in 2002;

• information on the division of ownership of the Montreal Technoparc

sector and its relevance to enforcement efforts;

• information on Environment Canada’s technical actions and advice

and its relevance to enforcement efforts at the Montreal Technoparc

sector; and

• compliance promotion efforts following the decision by Environment

Canada not to seek charges.

The Council directed the Secretariat to provide the Parties with its

overall work plan for gathering the relevant facts and to provide the Parties with the opportunity to comment on that plan. The Council further

directed the Secretariat to consider, in developing the factual record,

whether the Party concerned “is failing to effectively enforce its environmental law” since the entry into force of the NAAEC on 1 January 1994.

In considering such an alleged failure to effectively enforce, relevant

facts that existed prior to 1 January 1994, may be included in the factual

record.

154 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
Under Article 15(4) of the NAAEC, in developing a factual record,

“the Secretariat shall consider any information furnished by a Party and

may consider any relevant technical, scientific or other information: (a)

that is publicly available; (b) submitted by interested nongovernmental

organizations or persons; (c) submitted by the Joint Public Advisory

Committee (JPAC); or (d) developed by the Secretariat or by independent experts.”

Overall Scope of the Fact Finding

To prepare the factual record, the Secretariat will gather and

develop information relevant to the following items with regard to the

government of Canada’s alleged failure to effectively enforce section

36(3) of the Fisheries Act with respect to the Montreal Technoparc site,

as asserted in the submission:

(i) facts surrounding Environment Canada’s inspections of the

Technoparc site, before and after the issuance of a warning in 1998;

(ii) facts surrounding Environment Canada’s 2002-2003 investigation

regarding the Technoparc site, in response to a request from members of the public;

(iii) characteristics and fate of the contamination of the Montreal

Technoparc sector;

(iv) results of the oil containment and pumping system(s) at the

Montreal Technoparc sector;

(v) the ecotoxicological study carried out in 2002 regarding the

Technoparc site;

(vi) information on the division of ownership of the Montreal

Technoparc sector and its relevance to enforcement efforts;

(vii) information on Environment Canada’s technical actions and

advice and its relevance to enforcement efforts at the Montreal

Technoparc sector; and

(viii) compliance promotion efforts following the decision by Environment Canada not to seek charges with respect to the Technoparc

site.

APPENDIX 2 155
Overall Plan

Consistent with Council Resolution 04-05, execution of the overall

plan will begin no sooner than 1 October 2004. All other dates are best

estimates. The overall plan is as follows:

• Through public notices or direct requests for information, the Secretariat will invite the Submitters; JPAC; community members; the general public; and local, provincial and federal government officials to

submit information relevant to the scope of fact-finding outlined

above. The Secretariat will explain the scope of the fact finding, providing sufficient information to enable interested nongovernmental

organizations or persons or the JPAC to provide relevant information

to the Secretariat (section 15.2 of the Guidelines). [October-November

2004]

• The Secretariat will request information relevant to the factual record

from federal, provincial and local government authorities of Canada,

as appropriate, and shall consider any information furnished by a

Party (Articles 15(4) and 21(1)(a) of the NAAEC). [October-November 2004]

• The Secretariat will gather relevant technical, scientific or other information that is publicly available, including from existing databases,

public files, information centers, libraries, research centers and academic institutions. [October 2004 through February 2005]

• The Secretariat, as appropriate, will develop, through independent

experts, technical, scientific or other information relevant to the factual record. [October 2004 through February 2005]

• The Secretariat, as appropriate, will collect relevant technical, scientific or other information for the preparation of the factual record,

from interested nongovernmental organizations or persons, the JPAC

or independent experts. [October 2004 through February 2005]

• In accordance with Article 15(4), the Secretariat will prepare the draft

factual record based on the information gathered and developed.

[February through May 2005]

• The Secretariat will submit a draft factual record to Council, and any

Party may provide comments on the accuracy of the draft within 45

days thereafter, in accordance with Article 15(5). [end May 2005]

156 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
• As provided by Article 15(6), the Secretariat will incorporate, as

appropriate, any such comments in the final factual record and submit it to Council. [August 2005]

• The Council may, by a two-thirds vote, make the final factual record

publicly available, normally within 60 days following its submission,

according to Article 15(7).

Additional information

The submission, the Party’s response, the Secretariat’s determinations, the Council Resolution, and a summary of these are available

in the Registry on Citizen Submissions on the CEC home page <www.

cec.org>, or upon request to the Secretariat at the following address:

Secretariat of the CEC

Submissions on Enforcement Matters Unit

393 St-Jacques St. West,

Suite 200

Montreal QC H2Y 1N9

Canada

APPENDIX 2 157

APPENDIX 3

Request for Information

(8 February 2005)

Secretariat of the Commission

for Environmental Cooperation

Request for Information

for Preparation of a Factual Record

Submission SEM-03-005 (Montreal Technoparc)

8 February 2005

Contents

1. The factual record process

2. The Montreal Technoparc submission and Council’s instructions

3. Request for information

4. Additional background information

5. Where to send information

1. The factual record process

The Commission for Environmental Cooperation (CEC) of North

America is an international organization created in 1994 under the North

American Agreement on Environmental Cooperation (NAAEC) by Canada,

Mexico and the United States. The CEC operates through three organs: a

Council, made up of the highest-level environmental official in each

member country; a Joint Public Advisory Committee (JPAC), composed

of five citizens from each country; and a Secretariat located in Montreal.

Article 14 of NAAEC allows persons or nongovernmental organizations in North America to inform the Secretariat by a written submission that any member country (hereinafter a “Party”) is failing to

effectively enforce its environmental law. This initiates a process of

review of the submission, after which the Council may instruct the Secretariat to prepare a factual record in connection with the submission. A

factual record seeks to provide detailed information to allow interested

persons to assess whether a Party is effectively enforcing its environmental law with respect to the matter raised in the submission.

Under Articles 15(4) and 21(1)(a) of NAAEC, in developing a factual record, the Secretariat shall consider any information furnished by a

Party and may ask a Party to provide information. The Secretariat also

may consider any relevant technical, scientific or other information that

is publicly available, submitted by JPAC or by interested nongovernAPPENDIX 3 161
mental organizations or persons, or developed by the Secretariat or

independent experts.

On 20 August 2004, in Council Resolution 04-05, the Council

decided unanimously to instruct the Secretariat to prepare a factual

record in connection with the submission, in accordance with Article 15

of the NAAEC and the Guidelines for Submissions on Enforcement Matters

under Articles 14 and 15 of the NAAEC (Guidelines). The Secretariat is now

requesting information relevant to matters to be addressed in the factual

record. The following sections provide background on the submission

and describe the information requested.

2. The Montreal Technoparc submission and Council’s

instructions

On 14 August 2003, Waterkeeper Alliance, Lake Ontario Waterkeeper, Société pour Vaincre la Pollution, Environmental Bureau of

Investigation, and Upper St. Lawrence Riverkeeper/Save the River!

presented to the CEC Secretariat a submission in accordance with Article 14 of the NAAEC. The submission, along with supporting materials,

asserts that Canada is failing to effectively enforce section 36(3) of the

federal Fisheries Act in connection with the discharge of deleterious substances from the city’s Technoparc site to the Saint Lawrence River. Section 36(3) of the Fisheries Act prohibits the deposit of a deleterious

substance into water frequented by fish unless the deposit is authorized

by regulation.

On 15 September 2003, the Secretariat determined that the submission met the requirements of Article 14(1) of the NAAEC and requested

a response from the Party concerned (Canada) in accordance with Article 14(2). Canada submitted its response on 14 November 2003. The

response explains Environment Canada’s responsibilities in regard to

administration of section 36(3) of the Fisheries Act, presents summary

information concerning the history and environmental condition of the

sector of the Montreal Technoparc, and describes enforcement and

compliance promotion actions undertaken by Environment Canada in

regard to deposits of deleterious substances from the sector of the Montreal Technoparc into the Saint Lawrence River. On 19 April 2004, the

Secretariat informed the CEC Council that it considered that the submission, in light of Canada’s response, warranted developing a factual

record.

On 20 August 2004, in Council Resolution 04-05, the Council

decided unanimously to instruct the Secretariat to prepare a factual

162 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
record in accordance with Article 15 of the NAAEC and the Guidelinesin

respect of the following items arising in the context of the submission

with regard to Canada’s alleged failure to effectively enforce section

36(3) of the Fisheries Act:

• facts surrounding Environment Canada’s inspections, before and

after, the issuance of a warning in 1998;

• facts surrounding Environment Canada’s 2002-2003 investigation,

in response to a request from members of the public;

• characteristics and fate of the contamination of the Montreal Technoparc sector;

• results of the oil containment and pumping system(s) at the Montreal

Technoparc sector;

• the ecotoxicological study carried out in 2002;

• information on the division of ownership of the Montreal Technoparc

sector and its relevance to enforcement efforts;

• information on Environment Canada’s technical actions and advice

and its relevance to enforcement efforts at the Montreal Technoparc

sector; and

• compliance promotion efforts following the decision by Environment

Canada not to seek charges.

The Council directed the Secretariat to provide the Parties with its

overall work plan for gathering the relevant facts and to provide the Parties with the opportunity to comment on that plan. The Council further

directed the Secretariat to consider, in developing the factual record,

whether the Party concerned “is failing to effectively enforce its environmental law” since the entry into force of the NAAEC on 1 January 1994.

In considering such an alleged failure to effectively enforce, relevant

facts that existed prior to 1 January 1994, may be included in the factual

record.

Under Article 15(4) of the NAAEC, in developing a factual record,

“the Secretariat shall consider any information furnished by a Party and

may consider any relevant technical, scientific or other information:

(a) that is publicly available; (b) submitted by interested nongovernmental organizations or persons; (c) submitted by the Joint Public Advisory Committee (JPAC); or (d) developed by the Secretariat or by

independent experts.”

APPENDIX 3 163
3. Request for information

The Secretariat seeks information relevant to:

• facts surrounding Environment Canada’s inspections, before and

after, the issuance of a warning in 1998;

• facts surrounding Environment Canada’s 2002-2003 investigation, in

response to a request from members of the public;

• characteristics and fate of the contamination of the Montreal Technoparc sector;

• results of the oil containment and pumping system(s) at the Montreal

Technoparc sector;

• the ecotoxicological study carried out in 2002;

• information on the division of ownership of the Montreal Technoparc

sector and its relevance to enforcement efforts;

• information on Environment Canada’s technical actions and advice

and its relevance to enforcement efforts at the Montreal Technoparc

sector;

• compliance promotion efforts following the decision by Environment

Canada not to seek charges;

• information on communications and relations between Environment

Canada, the Quebec Ministry of the Environment and the City of

Montreal to promote compliance with and enforce the Fisheries Act

(R.S.C. 1985, c. F-14);

• any other information considered relevant.

4. Additional background information

The submission, Canada’s response, the Secretariat’s determination, the Council Resolution, the overall plan to develop the factual

record and other information are available on the Citizen Submissions

on Enforcement Matters page of the CEC web site: <http://www.

cec.org/citizen>. These documents may also be requested from the Secretariat.

164 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
5. Where to Send Information

Relevant information for the development of the factual

record may be sent to the Secretariat until 31 May 2005, by e-mail to

<info@cec.org> or by regular mail to the following address:

Secretariat of the CEC

Submissions on Enforcement Matters Unit

393 St-Jacques St. West

Suite 200

Montreal QC H2Y 1N9

Canada

Please reference SEM-03-005 (Montreal Technoparc) in all correspondence.

For any questions, please call Katia Opalka, Legal Officer, Submissions

on Enforcement Matters Unit at (514) 350-4337 or send her an e-mail at

<kopalka@cec.org>.

APPENDIX 3 165

APPENDIX 4

Request for Additional Information

(30 January 2006)

From: CEC Legal Officer

Sent: Monday, January 30, 2006

To: Environment Canada

Cc: CEC

Subject: CEC/ Technoparc/ Request for Additional Informations

Good morning,

As agreed, here is the list of additional information we would like

access to. Please let me know as soon as possible how long it will take to

process this request.

Sincerely,

Annexe 32 – Missing page 1

SNC Lavalin Environnement Inc. “System for intercepting and recovering hydrocarbon floating phases at the site of the former Adacport,

Montréal. Supplementary characterization, Summer 2003”. August

2004. (report in French only)

Annexe 36 – Missing most of the text

Ville de Montréal. Call for proposals for professional services. November 2001. (in French only)

Other documents required:

* Dessau-Soprin, April 2004. “Drilling, sampling and assay report for

groundwater in section 12 of the Champlain Bridge.” (report in French

only)

* Golder Associés, August 2003. “Appraisal of the presence and vertical

extent of the dissolved phase at the boundary of the site east of the

Butler branch line in Pointe St-Charles, Québec.” (report in French

only)

* All technical documents or communications after autumn 2004 issued

by the City of Montréal, the MDDEP or EC, in particular regarding

changes in methods for treating groundwater at the site. In the

APPENDIX 4 169
autumn of 2004, the City of Montréal changed its decontamination

approach to include groundwater treatment instead of only floating

phases.

* A wall was built by Dessau-Soprin in Autumn 2005 to capture floating

phases and to contain and treat groundwater. All documents related

to the design and construction of this wall.

* All documents related to federal government grants for treatment at

the Technoparc site. These grants would have been awarded to the

MCEBR in 2005.

170 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
APPENDIX 5

Supplementary information requests

(6 and 19 September 2006) and

Canada’s responses

(1 November 2006)

6 September 2006

Re: Supplementary Information Request

SEM-03-005 (Montreal Technoparc) /

Development of a factual record

We hereby request supplementary information in order to finalize

the process of developing a factual record related to the above-captioned

submission.

Based on information obtained by the Secretariat, it appears that

some of the contamination found at the Montreal Technoparc comes

from adjacent sites, in particular, those lands hydraulically upstream

from the Technoparc used by the CN (Canadian National Railway Company) for railway operations for many years. The Secretariat would like

to know whether the federal government or a crown corporation has any

obligation, either under a contract or in some other way, concerning the

contamination on those lands that is flowing into the groundwater at the

Technoparc and eventually reaching the St. Lawrence River. If so, we

request that you provide details of the origins, nature and extent of this

obligation, and that you provide us with a copy of any related documentation. This will help us create a complete picture of the federal government’s situation vis-à-vis section 36(3) of the Fisheries Act as regards

discharges coming from the Montreal Technoparc.

So as not to delay the finalization of the factual record, the Secretariat would appreciate receiving the information described above no later

than 6 October 2006.

We thank you in advance for your attention in this matter.

Yours sincerely,

Legal Officer

Submissions on Enforcement Matters Unit

c.c. Environment Canada

CEC Executive Director

Enclosure

APPENDIX 5 173
19 September 2006

Re: Meeting Request

SEM-03-005 (Montréal Technoparc) /

Development of a factual record

After having read and considered the information provided by

Canada in August 2005 regarding the development of a factual record

for the submission noted above, the Secretariat wishes to convene a

meeting in Montréal with those in charge of this file at Environment

Canada in order to better understand the roles of compliance promotion

and enforcement with respect to achieving the goal of compliance with

section 36(3) of the Fisheries Act at the Montréal Technoparc.

At this meeting, we hope to obtain further details concerning the

following points:

1.0 What groundwater quality standards did Environment Canada

use to assess options put forward by the City of Montreal regarding parameters found in the Technoparc groundwater?

1.1 With respect to compliance with section 36(3) of the Fisheries Act, is

it acceptable to redirect the groundwater at the Montréal Technoparc to the City of Montreal’s wastewater treatment plant without

any pretreatment?

1.2 What is the relationship between Environment Canada’s enforcement of section 36(3) of the Fisheries Act and the participation of the

federal government in funding a pilot project at the Montreal Centre of Excellence in Brownfields Rehabilitation (MCEBR) to treat

groundwater at the Technoparc?

1.3 Is the federal government pursuing a comprehensive approach to

achieving compliance with section 36(3) of the Fisheries Act for all

the properties in the Montréal Technoparc sector owned by the

government or a crown corporation or for which the government

has a contractual obligation? If so, what are the details of this

approach? If not, why not?

The Secretariat will also be trying to better understand how Environment Canada collaborated with the ministère du Développement

durable, de l’Environnement et des Parcs du Québec—in the spirit of

174 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
agreements reached by the Canadian Council of Ministers of the Environment (CCME)—to develop a coordinated approach that would allow

the federal government to fulfill the requirements of enforcement of

section 36(3) concerning the off-site discharge of contaminants from the

Technoparc. In particular, the Secretariat will broach the following

questions:

2.1 According to the CCME, there are agreements between Québec

and the federal government concerning harmonization in environmental matters. Is there an agreement concerning the enforcement

of section 36(3) of the Fisheries Act, and if so, what are its provisions?

2.2 Were there any discussions between the federal, provincial and

municipal governments for the purposes of issuing an order or initiating legal proceedings under Québec’s Environment Quality Act

aimed at, among other things, enforcing compliance with section

36(3) of the Fisheries Act at the Montreal Technoparc? If so, what are

the details? If not, why not?

Please contact Rosa Blandon at 514-350-4363 to set a meeting time,

which should ideally occur before 15 October 2006, so as not to delay the

finalization of the factual record.

In the meantime, we thank you for your attention in this matter.

Yours sincerely,

Legal Officer

Submissions on Enforcement Matters Unit

c.c. Environment Canada

CEC Executive Director

APPENDIX 5 175
MONTREAL TECHNOPARC

DEVELOPMENT OF A FACTUAL RECORD

COMMISSION FOR ENVIRONMENTAL COOPERATION (CEC)

CEC REQUEST OF 6 SEPTEMBER 2006

Summary: The Secretariat wishes to know if the federal government or a federal Crown corporation has any obligation, contractual or otherwise, with respect to the

contamination of the lands in question and which flows

into the groundwater of the Technoparc, eventually

reaching the St. Lawrence River. If so, the Secretariat

would like further details as to the origin, nature and

extent of this obligation, along with a copy of any

related documentation.

Response: The properties occupying the former riverbed that

forms part of the Technoparc sector are indicated in the

cadastral maps submitted to the CEC. Concerning the

question of establishing any obligation of the federal

government or a federal Crown corporation with

respect to the groundwater contamination, the sought

after response falls into the category of legal opinion.

Legal opinions obtained by the Government of Canada

are protected by lawyer-client privilege and cannot be

disclosed.

CEC REQUESTS OF 19 SEPTEMBER 2006

Question 1.0: What groundwater quality criteria did Environment

Canada use to assess the intervention options proposed

by the City of Montreal with respect to the different

parameters of the Technoparc’s groundwater?

Answer 1.0: Subsequent to the City of Montreal’s submission, in the

winter and spring of 2002, of an environmental characterization study carried out by SNC-Lavalin and a final

design study for the construction of an interception system for floating phase petroleum hydrocarbons (unanchored wall 1.6 km in length), Environment Canada

compared the groundwater test results with the quality

criteria for aquatic life in the Canadian Environmental

Quality Guidelines (Chapter 4: Canadian Water Quality

Guidelines for the Protection of Aquatic Life), pub176 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
lished by the Canadian Council of Ministers of the Environment.

Question 1.1: With respect to compliance with section 36(3) of the

Fisheries Act, is it acceptable to redirect groundwater

from the Montreal Technoparc to the City of Montreal’s

wastewater treatment plant without pre-treatment?

Answer 1.1: Regardless of the solution implemented, compliance

with section 36(3) of the Fisheries Act is mandatory.

Environment Canada will ensure that this provision is

respected under the terms of the “Compliance and

Enforcement Policy for the Habitat Protection and Pollution Prevention Provisions of the Fisheries Act” (July

2001).

Question 1.2: What connection is there between Environment Canada’s enforcement of section 36(3) of the Fisheries Act

and the federal government’s participation in the pilot

project of the Montreal Centre for Excellence in Brownfields Rehabilitation (MCEBR) aimed at treating the

Technoparc’s groundwater?

Answer 1.2: The MCEBR project, funded by Economic Development Canada, is aimed at identifying one or more

technologies that would resolve the environmental

problem of the entire Montreal Technoparc sector.

Question 1.3: Does the federal government take a comprehensive

approach to achieving compliance with section 36(3) of

the Fisheries Act that covers all properties of the Montreal Technoparc sector that it or a Crown corporation

owns or has a contractual obligation towards? If so,

what are the details of this approach? If not, why not?

Answer 1.3: The approach taken by the federal government to

achieve compliance with section 36(3) of the Fisheries

Act assumes that the stakeholders involved are seeking

a solution. The implementation of the solution is what

will allow compliance to be achieved. An enforcement

measure would always be possible if one of the alleged

violators decided to cease contributing to the search

for and implementation of a solution. This ministerial

approach is in agreement with its own enforcement

APPENDIX 5 177
policy, under which the choice of enforcement measure

takes into account the willingness of the alleged violators to cooperate in returning to compliance.

Question 2.1: According to the CCME, agreements exist between

Quebec and the federal government concerning environmental harmonization. Is there any agreement concerning the enforcement of section 36(3) of the Fisheries

Act, and if so, what are its provisions?

Answer 2.1: There exists no agreement between the governments of

Quebec and Canada concerning the enforcement of section 36(3) of the Fisheries Act.

Question 2.2: Have there been any talks between the federal, provincial and municipal governments in order to issue a

decree or initiate legal proceedings under Quebec’s

Environment Quality Act aimed at, among other things,

compliance with section 36(3) of the Fisheries Act at the

Montreal Technoparc? If so, what are the details? If not,

why not?

Answer 2.2: The talks mentioned in the question fall under possible

discussions between the Attorney General of Canada

and the Attorney General of Quebec. The existence

of such talks, if any, and their substance cannot be

disclosed.

178 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
APPENDIX 6

Notice of Contamination (CN, 2005)

Page 1 of 1

Ressources Certified Registration Certificate

naturelles, of Law

Faune et Parcs Québec Land Registry

QUÉBEC

I certify that the requisition presented on 2005-02-08 at 09:00 was entered into

the land registry of the registration division of Montréal under the number

12 063 295.

Requisition Identification

Presentation method: Notice

Form: Under private signature

General nature: Notice of contamination, art. 31.58, Env. Quality Act

Name of parties: Applicant Canadian National Railway Company

APPENDIX 6 181
2005-02-08 9:00

NOTICE OF CONTAMINATION

(Article 31.58 of the Environment Quality Act,

R.S.Q., c. Q-2) 12 063 295

REGISTRATION DIVISION OF MONTRÉAL

Montreal, this 1st day of February, two thousand five (2005)

APPEARED: CANADIAN NATIONAL

RAILWAY COMPANY

legally established corporation,

having its headquarters located at

935 rue de La Gauchetière Ouest,

City of Montréal, Québec,

H3B 2M9, acting and represented

by Normand Pellerin, duly authorized as he has declared;

(hereafter, the “Appearer”)

WHO GIVES THE PRESENT NOTICE and requests the officer of the

bureau of publication of rights of the registration division of Montréal to

record in the register the present notice of contamination concerning

the land designated hereafter, namely a statement of the nature of the

contaminants present in this land exceeding the regulatory limit values,

as described in the summary of the characterization study presented

below and attested to by an expert under article 31.65 of the Environment

Quality Act, R.S.Q., c. Q-2.

1. DESIGNATION OF LAND

A known lot or location and designation as being:

1.1

A- Lot 1 382 514

Lot ONE MILLION THREE HUNDRED EIGHTY-TWO THOUSAND

FIVE HUNDRED FOURTEEN (1 382 514), of the Québec Cadastre,

182 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
registration division of Montréal, in the municipality of the City of

Montréal, with an area of five hundred seventy square meters and

six-tenths (570.6 m2).

B- Lot 1 380 526

Lot ONE MILLION THREE HUNDRED EIGHTY THOUSAND FIVE

HUNDRED TWENTY-SIX (1 380 526), of the Québec Cadastre, registration division of Montréal, in the municipality of the City of Montréal,

with a trapezoidal shape, bounded and more explicitly described as

follows: in the north (90o48’) by a portion of lot 1 728 972, measuring

forty-seven meters and ten one-hundredths (47.10 m) along this boundary; in the east (180o39’) by a portion of lot 1 728 972, measuring

twenty-nine meters and twenty-four one-hundredths (29.24 m) along

this boundary; in the south (270o48’) by lot 1 603 279 composed of rue

Sainte-Madeleine, measuring forty-seven meters and ten one-hundredths (47.10 m) along this boundary; in the west (0o39’) by lot 1 381 578

composed of rue LeBer, measuring twenty-nine meters and twenty-four

one-hundredths (29.24 m) along this boundary.

Containing an area of one thousand three hundred seventy-seven

square meters and one tenth (1,377.1 m2).

C- Lot 1 382 524

Lot ONE MILLION THREE HUNDRED EIGHTY-TWO THOUSAND FIVE HUNDRED TWENTY-FOUR (1 382 524), of the Québec

Cadastre, registration division of Montréal, in the municipality of the

City of Montréal, of irregular shape, bounded and more explicitly

described as follows: in the north (90o48’) by a portion of lot 1 728 972,

measuring one hundred thirty-one metres and fifty-four one-hundredths (131.54 m) (cadastre: one hundred thirty two metres and thirty

one-hundredths (132.30 m)) along this boundary; in the east (180o48’) by

a portion of lot 1 728 972, measuring sixteen meters and twenty-five

one-hundredths (16.25 m) (cadastre: sixteen meters and fifteen one-hundredths (16.15 m)) along this boundary; in the north (90o48’) by a portion

of lot 1 728 972, measuring forty-two metres and ninety-eight one-hundredths (42.98 m) along this boundary; in the east (180o48’) by a portion

of lot 1 728 972, measuring twenty-nine meters and twenty-three onehundredths (29.23 m) along this boundary; in the south (270o48’) by a

portion of lot 1 728 972, measuring six meters and seventy-one one-hundredths (6.71 m) along this boundary; in the east (180o48’) by a portion of

lot 1 728 972, measuring twenty-nine meters and twenty-three one-hunAPPENDIX 6 183
dredths (29.23 m) along this boundary; in the south (270o48’) by a portion of lot 1 728 972 and by lot 1 382 636 composed of rue Bourgeoys,

measuring one hundred sixty-seven meters and ninety-six one-hundredths (167.96 m) (cadastre: one hundred sixty-eight meters and

twenty-two one-hundredths (168.22 m)) along this boundary; in the

west (0o48’) by lot 1 382 599 and by lot 1 603 279 composed of rue

Sainte-Madeleine, measuring seventy-four meters and seventy-two

one-hundredths (74.72 m) (cadastre: seventy-four meters and seventyseven one-hundredths (74.77 m)) along this boundary.

Containing an area of twelve thousand one hundred forty-six square

meters and nine tenths (12,146.9 m2) (cadastre: twelve thousand two

hundred three square meters and two tenths (12,203.2 m2)).

D- Portion of lot 1 380 523

A portion of lot ONE MILLION THREE HUNDRED EIGHTY THOUSAND FIVE HUNDRED TWENTY-THREE (1 380 523 pt), of the

Québec Cadastre, registration division of Montréal, in the municipality

of the City of Montréal, of irregular shape, bounded and more explicitly

described as follows: in the north-west (36o44’) by a portion of lot

3 116 826, measuring two hundred forty meters and three one-hundredths (240.03 m) along this boundary; in the north-west (64o01’) by a

portion of lot 3 116 826, measuring one hundred thirty-eight meters

and fifty one-hundredths (138.50 m) along this boundary; in the east

by another portion of lot 1 380 523, measuring seventy metres and

sixty-three one-hundredths (70.63 m) along the arc of a circle to the

left with an outside radius of one hundred twenty-seven meters and

sixty-eight one-hundredths (127.68 m) and a line of sixty-nine meters

and seventy-three one-hundredths (69.73 m) in the direction of 188o21’

along this boundary; in the east (172o48’) by another portion of lot

1 380 523, measuring fifty-five meters and seventy-one one-hundredths

(55.71 m) along this boundary; in the east (172o48’) by another portion of

lot 1 380 523, measuring twenty-nine meters and eighty-four one-hundredths (29.84 m) along the arc of a circle to the left with an outside

radius of one hundred sixteen meters and fifty-six one-hundredths

(116.56 m) and a line of twenty-nine meters and seventy-six one-hundredths (29.76 m) in the direction of 163o57’ along this boundary; in the

north-east (156o55’) by another portion of lot 1 380 523, measuring nine

meters and fifty-six one-hundredths (9.56 m) along this boundary; in the

north-east (154o39’) by another portion of lot 1 380 523, measuring

twenty-eight meters and ten one-hundredths (28.10 m) along this

boundary; in the north-east (154o32’) by another portion of lot 1 380 523,

measuring thirty-nine meters and sixty-eight one-hundredths (39.68 m)

184 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
along this boundary; in the east by another portion of lot 1 380 523,

measuring two hundred seven meters and fifty-eight one-hundredths

(207.58 m) along the arc of a circle to the right with an inside radius of

one hundred seventy-eight meters and ninety-nine one-hundredths

(178.99 m) and a line of one hundred ninety-six meters and fourteen

one-hundredths (196.14 m) in the direction of 183o53’ along this boundary; in the south-west (217o06’) by another portion of lot 1 380 523, measuring one hundred twenty-nine meters and three one-hundredths

(129.03 m) along this boundary; in the south (270o48’) by a portion of lot

1 728 972, measuring seventy-five meters (75.00 m) (cadastre: seventy-four meters and ninety-six one-hundredths (74.96 m)) along this

boundary; in the south (270o48’) by a portion of lot 1 728 972, measuring

three meters and fifty-seven one-hundredths (3.57 m) along this boundary; in the west (0o44’) by a portion of lot 3 116 826, measuring one hundred ninety meters and forty-one one-hundredths (190.41 m) (cadastre:

one hundred ninety-one meters and forty-one one-hundredths (191.41

m)) along this boundary.

Containing an area of one hundred twenty-two thousand four hundred

seventy-two square meters and six tenths (122,472.6 m2).

E- Portion of lot 1 728 972

A portion of lot ONE MILLION SEVEN HUNDRED TWENTYEIGHT THOUSAND NINE HUNDRED SEVENTY-TWO (1 728 972

pt), of the Québec Cadastre, registration division of Montréal, in the

municipality of the City of Montréal, of irregular shape, bounded and

more explicitly described as follows: in the north (90o48’) by a portion of

lots 3 116 826 and 1 380 523, measuring two hundred thirty-seven meters

and seventy-six one-hundredths (237.76 m) (cadastre: two hundred

thirty-eight meters and sixty-two one-hundredths (238.62 m)) along this

boundary; in the east (180o48’) by a portion of lot 1 380 523, measuring

seventy-five meters (75.00 m) (cadastre: seventy-four meters and

ninety-six one-hundredths (74.96 m)) along this boundary; in the north

(90o48’) by a portion of lot 1 380 523, measuring two hundred fourteen

meters and eighty-six one-hundredths (214.86 m) along this boundary;

in the south-east (217o06’) by another portion of lot 1 728 972, measuring

twenty-nine meters and fifty-eight one-hundredths (29.58 m) along this

boundary; in the west (0o51’) by a lot 1 380 626, composed of rue

Dick-Irvin, measuring eighty-one meters and forty-three one-hundredths (81.43 m) (total in cadastre: eighty-one meters and forty-four

one-hundredths (81.44 m)) along this boundary; in the south (270o48’) by

a lot 1 382 638, composed of rue Charon and by lot 1 380 626 composed

APPENDIX 6 185
of rue Dick-Irvin, measuring eighty-nine meters and twenty-three

one-hundredths (89.23 m) (cadastre: eighty-nine meters and thirty-two

one-hundredths (89.32 m)) along this boundary; in the west (0o48’) by

lots 1 382 440 and 1 382 513, measuring fifty-eight meters and fortyseven one-hundredths (58.47 m) (cadastre: fifty-eight meters and seventy-seven one-hundredths (58.77 m)) along this boundary; in the north

(90o48’) by lot 1 382 636, composed of rue Bourgeoys, measuring seven

meters and thirty-one one-hundredths (7.31 m) along this boundary; in

the east (180o48’) by lot 1 382 514, measuring twenty-nine meters and

twenty-three one-hundredths (29.23 m) (cadastre: twenty-nine meters

and twenty-six one-hundredths (29.26 m)) along this boundary; in the

north (90o48’) by lot 1 382 514, measuring nineteen meters and fifty

one-hundredths (19.50 m) along this boundary; in the west (0o48’) by lot

1 382 636, composed of rue Bourgeoys, and by lot 1 382 514, measuring

forty-eight meters and seventy-two one-hundredths (48.72 m) (cadastre:

forty-eight meters and seventy-five one-hundredths (48.75 m)) along

this boundary; in the north (90o48’) by lot 1 382 524, measuring eightytwo meters and fifty-five one-hundredths (82.55 m) (cadastre: eightytwo meters and seventy one-hundredths (82.70 m)) along this boundary;

in the west (0o30’) by lot 1 382 524, measuring twenty-nine meters and

twenty-three one-hundredths (29.23 m) along this boundary; in the

north (90o48’) by lot 1 382 524, measuring six meters and seventy-one

one-hundredths (6.71 m) along this boundary; in the west (0o48’) by

lot 1 382 524, measuring twenty-nine meters and twenty-three onehundredths (29.23 m) along this boundary; in the south (270o48’) by lot

1 382 524, measuring forty-two meters and ninety-eight one-hundredths

(42.98 m) along this boundary; in the west (0o48’) by lot 1 382 524,

measuring sixteen meters and twenty-five one-hundredths (16.25 m)

(cadastre: sixteen meters and fifteen one-hundredths (16.15 m)) along

this boundary; in the south (270o48’) by lot 1 382 524 and lot 1 603 279

composed of rue Sainte-Madeleine, measuring one hundred ninety

meters and nineteen one-hundredths (190.19 m) (cadastre: one hundred

eighty-nine meters and eighty-eight one-hundredths (189.88 m)) along

this boundary; in the west (0o39’) by lot 1 380 526, measuring twentynine meters and twenty-four one-hundredths (29.24 m) along this

boundary; in the south (270o48’) by lot 1 380 526, measuring forty-seven

meters and ten one-hundredths (47.10 m) along this boundary; in

the west (0o39’) by lot 1 381 578 composed of rue LeBer, measuring

seventy-four meters and seventy-one one-hundredths (74.71 m) (cadastre: seventy-five meters and nine one-hundredths (75.09 m)) along this

boundary.

Containing an area of fifty-five thousand three hundred sixty-seven

square meters and nine tenths (55,367.9 m2).

186 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
F- Portion of lot 3 116 826

A portion of lotTHREE MILLION ONE HUNDRED SIXTEEN THOUSAND EIGHT HUNDRED TWENTY-SIX (3 116 826 pt), of the Québec

Cadastre, registration division of Montréal, in the municipality of the

City of Montréal, of irregular shape, bounded and more explicitly

described as follows: in the north-west (64o02’) by another portion of lot

3 116 826, measuring seventy-four meters and three one-hundredths

(74.03 m) (cadastre: seventy-five meters and forty-six one-hundredths

(75.46 m)) along this boundary; in the north-west (61o41’) by another

portion of lot 3 116 826, measuring eighteen meters and forty-three

one-hundredths (18.43 m) along this boundary; in the north-west

(58o12’) by another portion of lot 3 116 826, measuring sixteen meters

and four one-hundredths (16.04 m) along this boundary; in the

north-west (54o57’) by another portion of lot 3 116 826, measuring

forty-six meters and twenty-seven one-hundredths (46.27 m) along this

boundary; in the north-west (64o20’) by another portion of lot 3 116 826,

measuring seven hundred eighty-two meters and forty-four one-hundredths (782.44 m) along this boundary; in the north (71o02’) by another

portion of lot 3 116 826, measuring ninety-two meters and fifty-eight

one-hundredths (92.58 m) along this boundary; in the south-east by

another portion of lot 3 116 826, measuring forty-four meters and

thirty-eight one-hundredths (44.38 m) along the arc of a circle to the

left with an outside radius of one hundred twenty-seven meters and

sixty-eight one-hundredths (127.68 m) and a line of forty-four meters

and fifteen one-hundredths (44.15 m) in the direction of 214o09’along

this boundary; in the south-east (244o01’) by a portion of lot 1 380 523,

measuring one hundred thirty-eight meters and fifty one-hundredths

(138.50 m) along this boundary; in the south-east (216o44’) by a portion

of lot 1 380 523, measuring two hundred forty meters and three one-hundredths (240.03 m) along this boundary; in the east (180o44’) by a portion

of lot 1 380 523, measuring one hundred ninety meters and forty-one

one-hundredths (190.41 m) (cadastre: one hundred ninety-one meters

and forty-one one-hundredths (191.41 m)) along this boundary; in the

south (270o48’) by a portion of lot 1 728 972, measuring two hundred

thirty-four meters and nineteen one-hundredths (234.19 m) (cadastre:

two hundred thirty-five meters and five one-hundredths (235.05 m))

along this boundary; in the west (0o39’) by lot 1 381 578 composed of rue

LeBer and by lot 1 382 642 composed of rue De Sébastopol, measuring

twenty-three meters and thirty-one one-hundredths (23.31 m) (cadastre:

twenty-two meters and eighty-seven one-hundredths (22.87 m)) along

this boundary; in the south-west by lot 1 382 642 composed of rue

De Sébastopol, measuring fifteen meters and seventy-eight one-hundredths (15.78 m) along the arc of a circle to the left with an outside

APPENDIX 6 187
radius of thirty meters and forty-eight one-hundredths (30.48 m) and a

line of fifteen meters and sixty one-hundredths (15.60 m) in the direction

of 307o41’along this boundary; in the south (270o45’) by lot 1 382 642

composed of rue De Sébastopol, measuring two hundred fifty-five

meters and fifty-four one-hundredths (255.54 m) (cadastre: two hundred fifty-three meters and six one-hundredths (253.06 m)) along this

boundary; in the south (268o36’) by lot 1 382 642 composed of rue De

Sébastopol, measuring twenty-six meters and sixty-six one-hundredths

(26.66 m) along this boundary; in the south (264o13’) by lot 1 382 642

composed of rue De Sébastopol, measuring seventeen meters and

eighty-six one-hundredths (17.86 m) along this boundary; in the south

(261o31’) by lot 1 382 642 composed of rue De Sébastopol, measuring

twenty-eight meters and seventy-five one-hundredths (28.75 m) (cadastre: thirty meters and seventy-one one-hundredths (30.71 m)) along this

boundary; in the south (262o07’) by lot 1 382 642 composed of rue De

Sébastopol, measuring fifty-nine meters and one one-hundredth (59.01

m) (cadastre: sixty meters and eighty-seven one-hundredths (60.87 m))

along this boundary; in the west (7o28’) by lot 1 381 638 composed of rue

Wellington, measuring ten meters and fourteen one-hundredths (10.14

m) along this boundary.

Containing an area of one hundred twenty-eight thousand seven hundred fifteen square meters and eight tenths (128,715.8 m2).

All dimensions are in meters (SI)

Parcels B and F are as indicated on map number I 45025 and in the technical description prepared by Daniel Lacroix, land surveyor, field sheet

8163, reference 2004-01-38, dated 21 January 2005.

1.2 bearing civic address 1830 rue Le Ber, in

the City of Montréal, Québec, H3H 2A4.

(hereafter “Immoveable”)

2. IDENTIFICATION OF OWNER AND PERSON SUBJECT TO

THE NOTICE

CANADIAN NATIONAL RAILWAY COMPANY is the owner of the

Immoveable in accordance with the deeds of ownership published with

the office of publication of rights of the registration division of Montréal

under the numbers 12 806, 12 813, 12 849, 76 275, 121 382, 141 724,

12 002 382, and non-published deeds and its address is 935, rue de La

Gauchetière Ouest, City of Montréal, Québec, H3B 2M9.

188 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
3. DESIGNATION OF THE MUNICIPALITY AND

AUTHORIZED USE

The land is located in the municipality of the City of Montréal and

“ Industrial” use is authorized on the land under this municipality’s

zoning regulations.

4. SUMMARY OF CHARACTERIZATION STUDY

The attached summary of the characterization study “Complementary

Characterization — Pointe St. Charles Site, Montréal, Québec, PIN

52184, 51335, 50239, 52334” [Caractérisation complémentaire — Site de

Pointe St-Charles, Montréal Québec, NIP 52184, 51335, 50239, 52334],

report prepared by Golder Associés Ltée for Canadian National and

Alstom Canada Inc., bearing reference number 04-1223-002, dated 29

October 2004, countersigned by the Appearer, is an integral part of the

present notice and contains:

4.1 a statement of the nature of the contaminants present in the land

and whose concentrations exceed the regulatory limit values;

4.2 a brief history of the activities that have taken place at the

Immoveable;

4.3 the area of the land occupied by contaminated soils as well as the

location and the volumes of these soils at the surface and at depth;

4.4 a statement of the nature and extent of the contaminants present in

the groundwater, if any;

4.5 an indication of the presence of a water collection facility destined

for human consumption within one kilometer as well as the proximity of a waterway or body of surface water, if applicable.

This summary is attested to by Madam Hélène S. Richer on 22 December

2004, a copy of which attestation form is appended.

5. SPECIAL CONDITION REGARDING NOTICES OF

CONTAMINATION

The present notice remains in effect as long as a notice of decontamination has not been recorded in the register against the Immoveable, or

part thereof.

APPENDIX 6 189
IN WITNESS WHEREOF, THE APPEARER HAS SIGNED

Signature of Appearer

By: N Pellerin [signature]

Normand Pellerin

__________________________

Montréal, 1 February 2005

ATTESTATION (xviii)

I, the undersigned, Olivier Chouc, attorney or notary, attest that:

1. I have verified the identity, capacity and competence of the

Appearer;

2. The document translates the wishes expressed by the Appearer;

3. The document is valid as to its form;

Attested at Montréal, province of Québec, this 1st day of February in the

year two thousand and five (2005).

Name: Olivier Chouc

Capacity: Attorney

Address: Canadian National

935 de La Gauchetière ouest, 16th floor

Montréal, Québec

H3B 2M9

Olivier Chouc [signature]

Olivier Chouc, attorney

190 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
Ministère

de l’Environnement

Québec

Terrestrial Policies Directorate

Contaminated Sites Division

ATTESTATION FORM

SUMMARY OF CHARACTERIZATION STUDY

After verification, I attest that the summary is in accordance with the

requirements of the Guide de caractérisation des terrains of the ministère de

l’Environnement du Québec.

HÉLÈNE S. RICHER 135

Name of expert (printed) Identification number

of expert

Hélène S. Richer [signature] 22 December 2004

Signature of expert Date

N Pellerin [signature] Feb 1/05

October 2004

APPENDIX 6 191

Address: 1830 Leber, Point St. Charles, Montréal

Lot nos: 1728972, 1380523, 1382524, Coordinates: DEG.DEC.NAD

3116826, 1382514, 1380526 Latitude: 45o29’00”

Longitude: 73o33’00”

Cadastre name: Cadastre of Québec, registration division of Montréal, municipality of

City of Montréal

Name: Yves Decoste

Name of company: Canadian National

Address: 935 de la Gauchetière, Montréal Postal Code: H3B 2M9

Telephone no.: 514-399-7155 Fax no.: 514-399-7703

Title: Caractérisation complémentaire — Site de Pointe St-Charles, Montréal, Québec

Firm: Golder Associés Ltée

Author: Simon Marcotte, Jacques Labonté, Pierre Groleau, Date: 29 October 2004

Hélène S. Richer
SUMMARY OF SITE ASSESSMENT

COMPLEMENTARY ASSESSMENT

POINT ST. CHARLES SITE

MONTREAL, QUEBEC

PIN 52184, 51335, 50239, 52334

CONFIDENTIAL

Submitted to:

Canadian National

Central Station

935 de la Gauchetière Ouest,

12th floor

Montreal, Quebec

H3B 2M9

Alstom Canada Inc.

5003, rue Lévy

Suite 200

Saint-Laurent, Quebec

H4R 2N9

December 2004 04-1223-002

192 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
CONFIDENTIAL

December 2004 -1- 04-1223-002

1.0 LOCATION AND DESCRIPTION OF SITE

The property under review is the site of the former Canadian

National (CN) repair shops located at 1830 rue Leber, in the Point St.

Charles district of Montréal. The activities carried out at this site consisted of locomotive maintenance and repair. The site, with an area of

32.67 hectares, is bounded to the south by the property of VIA Rail, to the

north by the main thoroughfare of the St-Hyacinthe subdivision of CN,

to the west by residential properties of the Point St. Charles district, and

to the east by the Victoria Bridge. The property identification numbers

(PIN) of the site are 52184, 51335, 50239, and 52334. The sector surrounding the land is serviced by municipal waterworks and sewer lines.

The coordinates of the central portion of the site are longitude

73o33’00” and latitude 45o29’00”. The property is located on lots

1 728 972, 1 380 523, 1 382 524, and 3 116 826. These lots are zoned E.7(1)

and I.5:100. Under the land use planning regulations of the South-West

Borough of the City of Montréal, this zoning allows for the following

uses: equipment and service vehicle yard, rail and rolling stock switching yard (E.7(1)), heavy machinery, machine tool, motor (I.5:100), which

is compatible with the current uses of these lots. According to the personnel questioned at the department of development and urban planning at the South-West borough offices, the future zoning of these lots is

unknown.

For ease of reference, a map of the land has been prepared, dividing it into eight sectors (A, B, C, D, E, F1, F2, and G). The following table

offers a brief description of these sectors.

Golder Associés

APPENDIX 6 193
CONFIDENTIAL

December 2004 -2- 04-1223-002

Sector Description

A Triangular shaped sector located on the north-west

portion of the site.

B Sector comprising the north complex on the center-north

portion of the site.

C Sector of the service and sand blasting center located

on the north-east portion of the site.

D Sector comprising the south complex, the boiler room

and the wheel machining shop.

E Glace Brunelle sector, located on the west portion of

the site, along the residential area.

F1 Triangular shaped sector located on the south-east

portion of the site.

F2 Sector of the former PCB storage depot, and of former

buildings used for rail car maintenance. This sector is

located on the south portion of the site.

G Small rectangular shaped sector on the south-west

portion of the site.

Golder Associés

194 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
CONFIDENTIAL

December 2004 -3- 04-1223-002

2.0 HISTORY AND PREVIOUS STUDIES

An initial environmental assessment (Phase 1) of the shops site was

carried out by Arthur D. Little (ADL) in 1994, drawing attention to a total

of twenty-five sectors presenting known or potential contamination

based on the nature of the facilities or historically identified activities.

The Phase 1 study highlighted two known contaminated sectors:

1. the service center;

2. the old underground storage tanks to the west of the service center;

As regards the service center, a 20-cm-thick layer of floating phase

hydrocarbons was reported as measured in a trench fashioned into a sort

of collection well. The presence of the free phase product at this location

is attributed to known spills of diesel fuel and to leaks from underground storage tanks and locomotives.

Little data is provided in the Phase 1 study related to the other

sector of known contamination. Evidence of contaminated soil was

observed during the removal of the five underground storage tanks

to the west of the services center, indicating potential groundwater

contamination.

Twenty-two (22) sectors of potential contamination were also

identified in the Phase 1 study. Among the most significant environmental issues, is use of petroleum products at the former roundhouse near

the north complex, current or past mechanical maintenance operations,

numerous underground or above ground storage tanks, and an old service station (Penn Oak oil) on an adjacent site.

The use of solvents is also identified in the sand blasting shop, the

former paint and varnish shop, the north and south complexes, the

service center, the wheel shop, and the former “Dope Shed.” Locations

where electrical equipment and materials contaminated with PCBs were

used or stored are also mentioned. Finally, potential contamination by

Golder Associés

APPENDIX 6 195
CONFIDENTIAL

December 2004 -4- 04-1223-002

metals can be linked to former smelting operations, battery storage, used

oil management and painting and sand blasting activities.

A Phase II of the environmental assessment was carried out by

ADL in 1994 and a Phase III assessment was carried out by DDH in 1996.

The results of these characterizations are included in the present study.

Golder Associés

196 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
CONFIDENTIAL

December 2004 -5- 04-1223-002

3.0 ASSESSMENT RESULTS

The primary objective of the study was to carry out an environmental characterization that includes all the elements that would allow

it to be attested by expert under Québec’s Environment Quality Act,

Section IV 2.1, due to the cessation of activities of Alstom on 31 March

2004. In order to achieve this objective, certain actions had to be taken:

1. an update of the Phase I characterization study to include activities

carried on since 1995, and

2. a characterization of the soils and groundwater in order to determine the presence and degree of environmental contamination

and define the contaminated sectors.

3.1 Update of Phase I EAs

In general, since the ADL study carried out in 1994, the operations

at the site have been reduced in terms of their spatial distribution. In fact,

upon arriving, Alstom concentrated most of its operations within the

north complex, which it enlarged for its needs. As a result, a reduction in

the number of facilities was observed, in terms of both auxiliary buildings and storage tanks. In addition, the few storage tanks that were

installed during the 1990s were all above-ground, with integrated double walls. Nor was any major event such as a spill reported during the

interviews.

Thus, according to the data collected for the present update, the

activities carried out at the site since 1994 do not represent a significant

environmental risk that necessitated a change in the characterization’s

work program. In other words, the work planned for the sectors of

concern that had been identified by ADL in 1995 and by Golder in 2003

appeared to be sufficient to cover the operations recently conducted by

Alstom.

Nevertheless, the interviews did indicate that underground infrastructures had been built by Alstom at the end of the 1990s in the north

complex (anchor pit, basins, inspection trenches, etc.). This update also

targets more specifically the sectors of concern located within the other

Golder Associés

APPENDIX 6 197
CONFIDENTIAL

December 2004 -6- 04-1223-002

buildings, such as the south complex, the wheel machining shop and the

special projects building, through a survey of underground infrastructures. Also, more details were obtained regarding the use of the buildings in sector G.

Moreover, some information obtained was considered for the

materials assessment. For example, the fire insurance report mentioned

that the walls of the Glace Brunelle Inc. building were covered with

asbestos.

Finally, according to documents reviewed, Pintsch gas operations

likely took place on site. However, to date, the exact nature of these operations remains unknown.

3.2 Soil and groundwater assessment

The Point St. Charles district is completely serviced by a municipal

waterworks network and the use of groundwater is not considered a

planned alternative source of water. According to the MENV (1999a)

classification system, given that the entire population of this district is

serviced by a waterworks network, and given the absence of water

supply wells in the superficial deposits and in the bedrock, the hydrostratigraphic units (superficial deposits and bedrock) below the site fall

into class III.

Potential receptors of groundwater flowing beneath the site are:

1. the combined sewer of the City of Montréal, and

2. the buildings.

The St. Lawrence river is located about 500 m east of the property.

However, the outflow of the site’s groundwater is located on the southwest side, towards rue LeBer and the residential district and not towards

the river. For this reason, the St. Lawrence River is not considered a

potential receptor of the groundwater flowing beneath the site, as

defined by the MENV policy.

Golder Associés

198 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
CONFIDENTIAL

December 2004 -7- 04-1223-002

Assessment of the soil and groundwater indicated the presence of

soil and groundwater exceeding usage criteria for the site. With respect

to groundwater, no impact on the receptors was identified. In fact, the

groundwater flowing out of the site meets the combined sewer discharge criteria. Moreover, the quality of the groundwater beneath the

site presents no risk to the health of occupants of the buildings. Applicable criteria were observed to be exceeded in the groundwater for

aluminum, petroleum hydrocarbons and PAHs. These excesses were

primarily located in sector C (service centre), where there is a plume of

free phase product. The area of the plume of contaminated groundwater

is about 5,365 m2.

With respect to soil quality, a summary of the results is presented

by sector:

• Sector A: exceedances of the Schedule II criteria (Land Protection and

Rehabilitation Regulation) for metals were observed in the sector fill.

The volume of soil exceeding the Schedule II criteria is estimated at

about 18,025 m3. No exceedances of the D criteria (Regulation respecting the burial of contaminated soils) were observed in this sector.

• Sector B: exceedances of Schedule II and D criteria for metals were

observed in the fill. The volumes of soil that exceed the criteria are

estimated at about 8,903 m3 in excess of D criteria and 41,690 m3 in

excess of Schedule II criteria (Schedule II-D range).

• Sector C: exceedances of D criteria in metals and Schedule II criteria in

metals and HP1 were observed in the fill. The volumes of soil that

exceed the criteria are estimated at about 7,400 m3 in excess of the D

criteria, 13,160 m3 in excess of Schedule II criteria (Schedule II-D

range) in metals, and 21,320 m3 in excess of HP Schedule II criteria (of

which about 7,000 m3 exceed the D criteria.)

Golder Associés

APPENDIX 6 199

1. Translator’s note: I believe HP here refers to “hydrocarbures petroliers,” or petroleum hydrocarbons.
CONFIDENTIAL

December 2004 -8- 04-1223-002

• Sector D: exceedances of Schedule I and II criteria and of D criteria for

metals were observed in the fill. The volumes of soil that exceed the

criteria are estimated at about 730 m3 in excess of the D criteria,

7,103 m3 in the Schedule II-D range and 11,665 m3 in the Schedule I-II

range.

• Sector E: exceedances of Schedule I and II criteria and of D criteria for

metals were observed in the fill. The volumes of soil that exceed the

criteria are estimated at about 3,300 m3 in excess of the D criteria,

28,600 m3 in the Schedule II-D range, and 17,275 m3 in the Schedule

I-II range.

• Sector F1: no soil exceeding the usage criteria were observed in this

sector. However, some pockets of contaminated soil identified in

other sectors do cross this sector. The volume of soil that exceeds

Schedule II criteria for metals is estimated at about 735 m3.

• Sector F2: exceedances of D criteria for metals and PAHs and of

Schedule II criteria for metals and HP were observed in the fill. The

volumes of soil that exceed the criteria are estimated at about 2,431 m3

in excess of D criteria for metals, 5,315 m3 in excess of D criteria for

PAHs, and 38,920 m3 in the Schedule II-D range for metals and HP.

• Sector G: exceedances of Schedule I and II criteria for metals were

observed in the fill. The volumes of soil that exceed the criteria are

estimated at about 1,510 m3 in excess of Schedule II criteria and

6,825 m3 in the Schedule I-II range.

In general, the contaminated soils are located in the surface fill to a

depth of less than 2 m.

Based on the results of this study, there is no indication that the

contamination of the soil and groundwater observed on and beneath the

property was caused by the activities of Alstom.

Golder Associés

200 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
APPENDIX 7

Chronology of investigation*

(Environment Canada, 2002-2003)

* This text, originally written in longhand, has been carefully transcribed to match the original. Chronologically, the text begins on the

last page and ends on the first page.

Environment Canada

Environmental Protection Branch

Investigations Section – pollution sector

Chronology of investigation

03-03-18

__________ _________________________________________

Date Investigator

Personnel number: 454

APPENDIX 7 203

Date File: QUE –020412-001 #

03-03-18

Meeting with [Manager, EC] and [Enforcement

Officer, EC, Investigations]

Presentation of the latest version of the Investigation

report.

Complete info in Nemesis.

Investigation report appended
Environment Canada

Environmental Protection Branch

Investigations Section – pollution sector

Chronology of investigation

03-03-18

__________ _________________________________________

Date Investigator

Personnel number: 454

204 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

Date File: QUE –020412-001 #

of the Crown. Must not make a connection with

those responsible in the past.

[Senior Counsel, Justice Canada, Federal

Prosecution Service] explains the elements

required to lay charges.

03-03-12 Work on draft report and letter to complainant

03-03-13 Meeting with [Manager, EC] and

[Enforcement Officer, EC, Investigations]

for the investigation report.

[Manager, EC] explains the changes she requests

and gives me a copy of the corrections to be made.

She will take care of correcting the response letter.

Her corrections on file.

03-03-14 Work on Technoparc. Investig. report.

03-03-17 Work on Technoparc. Investig. report.

Given the numerous changes to my investigation

report I can no longer recognize it as my own.
Environment Canada

Environmental Protection Branch

Investigations Section – pollution sector

Chronology of investigation

03-02-14

__________ _________________________________________

Date Investigator

Personnel number: 454

APPENDIX 7 205

Date File: QUE –020412-001 #

03-02-14 Send a note to [Senior Counsel, Justice Canada,

Commercial Law Directorate (Montreal)] requesting

that he send me the reference documents before the

meeting.

Prepare documents for meeting.

03-02-24 Update of report “État de situation d’une enquête”

(“State of the investigation”).

Meeting with [Manager, EC] to discuss the

information to remove in accordance with the

Access to Info. Act.

03-02-25 Meeting planned with [Senior Counsel, Justice

Canada, Commercial Law Directorate (Montreal)]

will take place on 10 March 2003 at Complexe Guy

Favreau, 5th, East Tower at 2:30 p.m

03-03-11 Meeting with [Senior Counsel, Justice Canada

Commercial Law Directorate (Montreal)] and [Senior

Counsel, Justice Canada, Federal Prosecution Service],

5th Tower East, place Guy Favreau.

Discussion of the possibilities at the penal level,

corrections suggested for the investigation report

as well as the response to the complainant.

[Senior Counsel, Justice Canada, Commercial Law

Directorate (Montreal)] recommends removing the

references to legal opinions and the inferences

regarding possible liability
Environment Canada

Environmental Protection Branch

Investigations Section – pollution sector

Chronology of investigation

03-02-10

__________ _________________________________________

Date Investigator

Personnel number: 454

206 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

Date File: QUE –020412-001 #

03-02-10 Concerning the decision regarding whether or not to

release certain information about which she is still

asking herself questions, such as drafts or

ministerial notes, I refer her to [Manager, EC].

✽ It is agreed that as soon as the response letter is sent

to the witnesses we will advise her so that she can

release all the information to the applicant.

03-02-12 [Advisor, EC, Access to Information and Privacy]

sends me certain pages that she received following

the request for access to the info in the file. On some

pages there is info missing. I research each of these

pages and send her the entire original version by

fax.

03-02-14 [Manager, EC] informs me that [Senior Counsel,

Justice Canada, Commercial Law Directorate

(Montreal)] intends to meet with us shortly.
Environment Canada

Environmental Protection Branch

Investigations Section – pollution sector

Chronology of investigation

03-01-22

__________ _________________________________________

Date Investigator

Personnel number: 454

APPENDIX 7 207

Date File: QUE –020412-001 #

[docu]ments that I sent him on 18 December 2002.

He tells me that he has been very busy and that he

could not review it. He thinks he will be able to call

me back by Friday and do the review.

Inform [Manager, EC]

03-01-23 I am summoned to a meeting

Monday January 27, 2003 at 8:45 a.m.

I receive the preliminary report for the analyses

done by our labs on the samples of groundwater at

the Technoparc.

03-02-10 Speak to [Advisor, EC, Access to Information and

Privacy]. She informs me that she is working on the

access to information request.

She must determine what can be turned over to the

applicant and wishes to know how the file is coming

along. I reply that the investigation is finished but

that, officially, as long as we have not responded to

the complainants, it remains open for the public and

the applicant.
Environment Canada

Environmental Protection Branch

Investigations Section – pollution sector

Chronology of investigation

02-12-18

__________ _________________________________________

Date Investigator

Personnel number: 454

208 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

Date File: QUE –020412-001 #

02-12-17 Meeting with [Manager, EC] who confirms that the

response letter dated 24 Sept 2002 that I had written

as a draft must also be reviewed by [Senior Counsel,

Justice Canada, Commercial Law Directorate

(Montreal)].

02-12-18 Send documents to [Senior Counsel, Justice Canada,

Commercial Law Directorate (Montreal)]:

– Investigation report

– Response to complainants

03-01-07 We receive an access to info request. [Manager, EC]

wants me to get back to [Advisor, EC, Access to

Information and Privacy].

I contact [Advisor, EC, Access to Information and

Privacy] and leave her a msg to call me back.

I meet with [Mailroom clerk, EC] and explain to her

that we will provide her with all the documents of

the investigations that will be photocopied.

03-01-08 Contact [Advisor, EC, Access to Information and

Privacy] and answer her questions as written in the

email of 7 January 2003 at 9:04 a.m.

03-01-22 Contact [Senior Counsel, Justice Canada, Commercial

Law Directorate (Montreal)] to know how he is

coming along with the review of the docu[ments]
Environment Canada

Environmental Protection Branch

Investigations Section – pollution sector

Chronology of investigation

02-09-24

__________ _________________________________________

Date Investigator

Personnel number: 454

APPENDIX 7 209

Date File: QUE –020412-001 #

02-9-23 Work on file.

02-9-24 Work on file.

02-9-30 Received from [Manager, EC] the corrected Q&A

and ministerial briefing notes.

02-12-05 Meeting with [Manager, EC] to find out about the

latest developments in the file.

The City refuses to build the wall that our experts

proposed and consequently [Manager, EC] asks me

to ensure that the factual data from the investigation

and its conclusions appear in the investigation

report. Moreover, the questions-answers and

ministerial briefing notes must be sent to [Senior

Counsel, Justice Canada, Commercial Law

Directorate (Montreal)] for review.

02-12-10 Work on file.

02-12-11 Work on investigation report.
Environment Canada

Environmental Protection Branch

Investigations Section – pollution sector

Chronology of investigation

02-09-16

__________ _________________________________________

Date Investigator

Personnel number: 454

210 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

Date File: QUE –020412-001 #

02-9-4 Work on the report prepared by [Regional

Intelligence Coordinator, EC].

02-9-5 Work on the report prepared by [Regional

Intelligence Coordinator, EC] and my own.

02-9-6 Work on the draft final report.

Submitted to [Manager, EC] and [Section Manager,

EC, Investigations] for review.

02-9-12 Receive msg from [Manager, EC] to give a copy to:

[Regional Director, Programs, Transport Canada,

Transfers and Real Estate Development]

[Regional Director General, EC]

[Senior Advisor, Sustainable Development, Water and

Contaminated Sites, EC, and Member, Federal

Interdepartmental Group on Sustainable

Development].

Send copies as requested.

02-9-16 Meeting with [Manager, EC].

We discuss the draft end-of-investigation report and

the changes and additions to be made.

She gives me points to include in the letter of

response to the complainants.

N.B.: It must be reviewed by [Senior Counsel, Justice

Canada, Commercial Law Directorate (Montreal)]
Environment Canada

Environmental Protection Branch

Investigations Section – pollution sector

Chronology of investigation

02-08-22

__________ _________________________________________

Date Investigator

Personnel number: 454

APPENDIX 7 211

Date File: QUE –020412-001 #

02-8-22 I informed [Manager, EC] and [Regional Director,

Programs, Transport Canada, Transfers and Real

Estate Development] that the report is written in

large part and that I am awaiting the results of the

search in the cadastre and for the owners of the

lands in question. I also asked [EC] to provide me

with the geo. coordinates of the sampled locations.

Minutes for this meeting will be prepared and a

copy placed in the file.

02-8-23 Work on the investigation report.

02-8-26 Work on the investigation report.

02-8-28 Work on the investigation report.

02-8-29 Work on the maps with [Regional Intelligence

Coordinator, EC] and [EC] who gave us the

coordinates of the sampled locations.

02-9-3 Work on the report prepared by [Regional

Intelligence Coordinator, EC].
Environment Canada

Environmental Protection Branch

Investigations Section – pollution sector

Chronology of investigation

02-08-22

__________ _________________________________________

Date Investigator

Personnel number: 454

212 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

Date File: QUE –020412-001 #

02-8-22 [Regional Director, Programs, Transport Canada,

Transfers and Real Estate Development] says he is

planning a meeting of the technical committee on 5

September. He wants city representatives to endorse

the results of the sampling carried out in the

summer of 2002.

After, he is quite sure he’ll get an undertaking from

them to carry out work that will be satisfactory from

the point of view of compliance with the FA.

He plans another meeting in mid-September with

the concertation committee.

[Manager, EC] would like the investigation report to

be presented to management in mid-September and

finalized by the end of that month. In the meantime

the response to the complainants and to the media

must be prepared. I must also ensure the transmission

of information to the various levels according to the

decision-making process.
Environment Canada

Environmental Protection Branch

Investigations Section – pollution sector

Chronology of investigation

02-08-14

__________ _________________________________________

Date Investigator

Personnel number: 454

APPENDIX 7 213

Date File: QUE –020412-001 #

02-8-14 Investigation at the Registry Office at the Court

House.

Searches in the property titles and notarized

contracts.

To do this I am with [Regional Intelligence

Coordinator, EC].

02-8-19 [Manager, EC] confirms the date of the next meeting

on Monday 22 August at 1:30 p.m. I suggest that she

invite [EC].

02-8-21 [Regional Intelligence Coordinator, EC] carries out

searches of property owners at the Court House.

I review correspondence from recent weeks in the

file and filed electronically in EC Montréal 10.

02-8-22

13h30

Work on file.

Meeting with [Manager, EC] and [Regional Director,

Programs, Transport Canada, Transfers and Real

Estate Development]

Discussion regarding progress of the investigation.

When and how to release the information on the

conclusion of the investigation. Strategy to adopt

with the City.
Environment Canada

Environmental Protection Branch

Investigations Section – pollution sector

Chronology of investigation

02-08-14

__________ _________________________________________

Date Investigator

Personnel number: 454

214 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

Date File: QUE –020412-001 #

02-8-14 on current and past owners of some of the lands that

are relevant to the complaint that started this file.

We agree that our searches must be confined to

certain lands located between Fernand-Séguin Street

and the Victoria Bridge and the CN property

boundary to the north and the river to the south.

Among these lands, those on which [EC] took

samples and that are also in the sector where the

complainants took samples.

For the lands not registered in the cadastre and

shown on the maps that we have at hand (the most

recent) and identified as being the St. Lawrence River,

even though they’ve been landfilled, we will check to

see whether they in fact belong to the Crown or to

someone else.
Environment Canada

Environmental Protection Branch

Investigations Section – pollution sector

Chronology of investigation

02-08-14

__________ _________________________________________

Date Investigator

Personnel number: 454

APPENDIX 7 215

Date File: QUE –020412-001 #

02-8-12 been taken to date and that he wants to take a third

series so that the sampling is statistically valid and

representative. He plans to add a fifth sampling

point higher up, north of point PO-8.

According to the analyses already carried out with

the tests with rainbow trout points PO99-4 and

99P-117-9 contain toxic substances. The two others

PO-8 and PR-2 passed the test but he wants to

submit the samples to other tests in order to see if

there is bio-accumulation of toxics and thereby

determine if we are dealing with effects that are

sub-lethal for fish.

02-8-14 Study the maps received from prov.

Min. of natural resources.

Along with [Regional Intelligence Coordinator, EC]

we determine how to proceed with our research
Environment Canada

Environmental Protection Branch

Investigations Section – pollution sector

Chronology of investigation

02-06-19

__________ _________________________________________

Date Investigator

Personnel number: 454

216 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

Date File: QUE –020412-001 #

02-06-19 Send note by email to [Manager, EC] informing her

of this.

I ask her to confirm to me that I am in a position to

continue my functions as an investigator under the

Fisheries Act before any action at all on this file.

02-07-12 To date, I have not received confirmation from

central that I was able to continue my current

functions.

02-07-22 Meeting with [Manager, EC] hands me a letter

confirming my current designation under the

Fisheries Act.

02-08-12 Meet [EC]. He explains to me the sampling procedure

at the Technoparc site.

There are 4 points to date that he identifies on a map

that he gives me.

The points are identified as: PO-8, PR-2, PO99-4,

99F117-9.

He explains that two series of samples have
Environment Canada

Environmental Protection Branch

Investigations Section – pollution sector

Chronology of investigation

02-06-10

__________ _________________________________________

Date Investigator

Personnel number: 454

APPENDIX 7 217

Date File: QUE –020412-001 #

02-6-10 Send a fax with the documents we have on the

Koopers case to [Counsel, Justice Canada] at Justice

Canada in Mtl.

Send email to [Head, Inspections, EC] with

[Counsel, Justice Canada]’s tel. no.

02-6-11 Meeting with [Manager, EC] for file update. Explain

the delay in receiving information from the Min. of

natural resources.

I inform her that I have established contact between

the lawyer dealing with the Koopers case in

Vancouver, Me Kiselbach, and [Counsel, Justice

Canada] from Justice Canada in Mtl.

I also asked her that I be sent their meeting minutes.

02-06-17 Received a note from [Ministerial Correspondence

and Briefing Officer, EC Transportation] on behalf

of [National Director, EC, Environmental

Enforcement].

We are asked to return the appointment cards and

the badges if we didn’t complete the training in

Regina.
Environment Canada

Environmental Protection Branch

Investigations Section – pollution sector

Chronology of investigation

02-06-10

__________ _________________________________________

Date Investigator

Personnel number: 454

218 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

Date File: QUE –020412-001 #

02-6-10 to represent the ministry on behalf of Justice Canada

(a full-time prosecutor could not be provided for

this file).

[Counsel, EC, Justice Canada], national civil

litigation committee at (613) 953-1385. He is in

charge of coordinating all files involving civil suits

at the ministry.

[Head, Inspections, EC] prefers that our prosecutor

be contacted by Me KISELBACH who will ask him

exactly what he needs.

Contact [Counsel, Justice Canada], intern and

replacement of [Senior Counsel, Justice Canada,

Commercial Law Directorate (Montreal)] during his

absence.

I explain to her that Mr. KISELBACH will contact her

and that in the meantime I am sending the very

cursory information that we have on the Koppers

case.
Environment Canada

Environmental Protection Branch

Investigations Section – pollution sector

Chronology of investigation

02-06-03

__________ _________________________________________

Date Investigator

Personnel number: 454

APPENDIX 7 219

Date File: QUE –020412-001 #

02-6-3 Contact [Project Officer, EC, P+Y Environmental

Protection Operations], coordinator of civil suits

at (604) 666-5958.

Away until July. I am referred to [Senior

Environmental Investigator EC, Investigations]

(phonetic) at (604) 666-3716.

02-6-10 Contact [Senior Environmental Investigator EC,

Investigations].

Leave message.

Contact [Head, Inspections, EC]. He explains the

case to me and makes recommendations to pass

onto programs in order to avoid us being exposed

to civil suits.

The comments and suggestions are very similar to

what [Senior Counsel, Justice Canada, Commercial

Law Directorate (Montreal)] told us during the

24 May meeting.

Due to the complexity of the Koppers file and the

significant number of documents, he refers me to

two people with whom [Senior Counsel, Justice

Canada, Commercial Law Directorate (Montreal)]

could discuss:

Me Dan KISELBACH from Miller Thompson.

This is the law firm that was mandated
Environment Canada

Environmental Protection Branch

Investigations Section – pollution sector

Chronology of investigation

02-06-03

__________ _________________________________________

Date Investigator

Personnel number: 454

220 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

Date File: QUE –020412-001 #

02-05-24 from Justice Canada:

[Senior Counsel, Justice Canada, Commercial Law

Directorate (Montreal)]

[Counsel, Justice Canada]

from Programs:

[Regional Director, Programs, Transport Canada,

Transfers and Real Estate Development]

[EC]

[Project Manager, EC, Evaluation, Restoration and

Waste Water]

[Program Engineer, EC, Evaluation, Restoration and

Waste Water]

from the St. Lawrence Centre:

[Manager, QA/QC Program and Ecotoxicology

Laboratory, EC, Quebec Laboratory for

Environmental Testing]

[Biologist, Aquatic Toxicology, EC, Quebec

Laboratory for Environmental Testing]

The purpose of the meeting was advice from [Senior

Counsel, Justice Canada, Commercial Law Directorate

(Montreal)] on how to proceed from the operations

perspective.

[Senior Counsel, Justice Canada, Commercial Law

Directorate (Montreal)] stressed the importance of

close consultation with partners based on proven

solutions and results that can be scientifically verified.

I will obtain information on the Cooper case and

transfer it to him
Environment Canada

Environmental Protection Branch

Investigations Section – pollution sector

Chronology of investigation

02-06-03

__________ _________________________________________

Date Investigator

Personnel number: 454

APPENDIX 7 221

Date File: QUE –020412-001 #

of taking samples on site, which would have the

effect of delaying the barrier project and preventing

the City of Montréal from having access to funding

from the Révisol program, which could later be held

against us. Confirmed by email.

02-05-21 Work on file.

02-05-22 Work on file.

02-05-23 Work on file.

Meeting with [Manager, EC] for follow-up.

A meeting with [Senior Counsel, Justice Canada,

Commercial Law Directorate (Montreal)] was

scheduled for 31 May 2002.

02-05-24 Work on file.

02-05-27 Work on file.

02-05-29 Work on file.

02-05-30 Work on file.

02-05-24 Work on file.

Meeting with the following people:
Environment Canada

Environmental Protection Branch

Investigations Section – pollution sector

Chronology of investigation

02-05-07

__________ _________________________________________

Date Investigator

Personnel number: 454

222 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

Date File: QUE –020412-001 #

02-05-07 Work on file.

02-05-08 Work on file

02-05-09 Work on file.

02-05-10 Work on file.

02-05-13 Work on file.

Meeting with [Manager, EC]

I recommend she consult a lawyer from the civil

section at Justice Canada.

02-05-14 Work on Technoparc.

02-05-15 Work on Technoparc.

02-05-16 Work on Technoparc.

02-05-17 Work on Technoparc.

Meeting with [Manager, EC] and I give her, once

again, the document on the KOPPERS case from B.C.

I ask her if management consulted Justice Canada.

She tells me no. I reiterate that they must assess the

importance
Environment Canada

Environmental Protection Branch

Investigations Section – pollution sector

Chronology of investigation

02-04-17

__________ _________________________________________

Date Investigator

Personnel number: 454

APPENDIX 7 223

Date File: QUE –020412-001 #

02-4-17 Receive file from archives.

Analyze information.

02-04-19 Investigation in the field with

[Enforcement Officer, EC, Investigations]

[Regional Intelligence Coordinator, EC]

[EC]

Take photos.

02-04-23 Work on file.

02-04-24 Work on file.

02-04-25 Work on file.

02-04-30 Work on file.

02-5-01 Work on file.

02-5-2 Work on file.

Meeting with [EC].

02-5-6 Work on file.

Meeting with [EC].
Environment Canada

Environmental Protection Branch

Investigations Section – pollution sector

Chronology of investigation

02-04-12

__________ _________________________________________

Date Investigator

Personnel number: 454

224 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

Date File: QUE –020412-001 #

02-04-12 Receive documents from [Section head, inspections,

EC] related to an investigation request

02-04-15 Examine documents received from [Section head,

inspections, EC].

Work on file.

Send several requests to complete information on

file.

I obtain from [Regional Intelligence Coordinator, EC]

documents obtained on the Internet site of the

Environmental bureau of investigation which is

assisting the complainant with its investigation

request.

I obtain from [Enforcement Officer, EC,

Investigations] info from the library.

Meeting with [Manager, EC] to do an overview and

strategy to adopt during the investigation.

02-4-16 Work on file.
Environment Canada

Environmental Protection Branch

Investigations Section – pollution sector

Chronology of investigation

_________________________________________

Date Investigator 16/04/2002

Personnel number:

APPENDIX 7 225

Date File: QUE –020412-001 #

11/04/2002 Received a FAX addressed to [Section head,

inspections, EC]

It is a letter signed by Mark Matson of EBI and

DANIEL GREEN of SVP requesting EC to

investigate in the TECHNOPARC file
Environment Canada

Environmental Protection Branch

Investigations Section – pollution sector

Chronology of investigation

_________________________________________

Date Investigator

Personnel number:

226 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

Date File: QUE –020412-001 #

21/01/2002 Meeting with Daniel Green of SVP and Mark

Matson of EBI in the EC offices at 105 McGill.

Mr. Matson gives [Section head, inspections, EC]

a preliminary report on contamination of the St.

Lawrence by the Technoparc site. It is agreed that

a final report will be given to us in about 10 days

according to EBI

25/01/2002 Meeting with the City of Montréal and E.C.

(See minutes)

*25/02/2002

*Approximate

date

Telephone call from Mark Matson EBI to [Section

head, inspections, EC]

to cancel a meeting that was supposed to take

place on 28/02/2002 in order to give the EC a

final report on contamination of the St. Lawrence

by the TECHNOPARC site.

28/02/2002 Meeting of EC ([Regional Director General, EC],

[Regional Director, Programs, Transport Canada,

Transfers and Real Estate Development] and

[Section head, inspections, EC]) and Justice

Canada ([Prosecutor, Federal Prosecution

Service, Justice Canada], [Prosecutor, Federal

Prosecution Service, Justice Canada], [Regional

Director, Federal Prosecution Service, Justice

Canada] on the TECHNOPARC file.

11/04/2002 Meeting with EBI (Mark Matson, Eric Matson)

and SVP (Daniel Green) and [Section head,

inspections, EC].

EBI gives EC a study report (The TECHNOPARC

SITE, April 11, 2002) on contamination of the

St. Lawrence by the TECHNOPARC site.
APPENDIX 8

Memorandum — Montreal Technoparc

(Environment Canada, n.d.)

Environnement Canada Région du Québec

Environment Canada Québec Region

NOTE DE SERVICE / MEMORANDUM

À Manager, Enforcement AUTEUR/ 283-0954

TO Division AUTHOR

EPB, Montreal # TEL.

N/R QUÉ020412-001

V/R

SÉCURITÉ/ PROTÉGÉ

DE Investigator SECURITY ÉBAUCHE

FROM EPB, Montreal DATE

OBJET Technoparc, Montréal

SUBJECT

A complaint was filed with Environment Canada’s Environmental

Protection Branch in Montréal (EC, EPB Montréal) and was turned over

to the Investigations Section. The investigation request was dated 11

April 2002 and signed by Daniel Green, executive director of the Société

pour vaincre la pollution (SVP) and Mark Mattson, executive director of

the Environmental Bureau of Investigation (EBI). They assert that toxic

substances are being discharged into the St. Lawrence River. The complaint was accompanied by a sampling report of tests carried out on the

shoreline along the Bonaventure Autoroute and adjacent to properties

that are part of the Technoparc. The analyses in the report indicated that

the samples contained PCBs, PAHs, and oils or greases. The validity of

the analyses of the submitted samples was accepted out of hand and was

not subject to independent verification by EC.

All available documents kept by EC, EPB Montréal were consulted, including documents kept in the archives, in divisions of federal

programs, and the Inspection and Emergencies sections. Others were

obtained from the Ministry of Natural Resources and the registry office

for the Montréal registration division (Bureau de la publicité des droits de la

circonscription foncière de Montréal). An information report containing all

documents relevant to the cadastral searches is available.i Given the

complex nature of this file, further details were requested from EPB

Montréal resource personnel.

APPENDIX 8 229
The different lots comprising the Technoparc are located in an

urban area on the southeast portion of the island of Montréal, between

the Champlain and Victoria bridges. The Technoparc is bounded to the

east by the St. Lawrence River and the Bonaventure Autoroute, and to

the west by the Canadian National (CN) rail yard, along the Butler line.

The historical details that follow are based on available information.

However, some details dating back to the 19th century are lacking or

cannot be confirmed. The investigator cannot therefore guarantee their

accuracy.

The entire current area of the Technoparc was originally a riparian

wetland along the St. Lawrence River and thus not registered in the

cadastre. Indeed, maps, updated and obtained from the Ministry of Natural Resources still show significant portions of the area as being part of

the St. Lawrence River, whereas today they are man-made lands built up

on the riverbed. Some have not yet been registered in the cadastre and

we were unable to find documentation attesting to their current owners.

A portion of the site is in fact the former “Point St. Charles dump,” which

dates from the mid-19th century.

In 1840, Point St. Charles was part of the countryside surrounding

Montréal, with the particularity that most of the land belonged to various religious communities. In 1853, the Grand Trunk Railway of Canada

acquired almost all the lands between Point St. Charles and St. Lambert.

In total, 120 arpents were purchased from four Point St. Charles religious

communities.

In 1864, the City of Montréal’s Waterworks Committee assigned

one of the Point St. Charles properties to the incineration department to

be used as a dump. In 1888, the City of Montréal acquired four other lots

registered in the cadastre, including two from religious communities, in

order to create a dump at the southern end of Ash Street at Point St.

Charles. Though the dump had been used for years, it was only officially

established by the City in 1902 and closed in 1966, when it became a

parking lot for EXPO ‘67. The dump received between 4 and 12 meters of

household and industrial waste, along with dry materials. The oldest

section was filled prior to 1933.

In 1909, the Harbour Commission (Port of Montréal) declared that

legally, the port’s property extended over 16 miles along both the eastern and western shores, at the high water mark.

In 1925, given the progression of the “Point St. Charles dump,” primarily on the southern side, the Commission authorized the City to

230 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
dump garbage on lands over which it held jurisdiction, extending to the

“Southern Boundary of the Harbour.” After 1955, the area filled in was

primarily toward the Victoria Bridge. In its post-1937 expansion, the

dump was located on Port of Montréal property.

In 1937, the City of Montréal transferred the site located on the St.

Gabriel pier at the south end of Ash Street to Canadian National (CN) in

exchange for other properties. CN built a new switching yard on the site,

bounded on the southeast by the Butler Line.

In 1966, the lands that today make up the Technoparc, like those of

the dump, were leveled and covered with a thin layer of gravel, to be

used as a parking lot for EXPO ‘67, called the Victoria Autoparc. This

was when problems related to gas produced by decomposing organic

matter were first encountered. At the same time, the Bonaventure

Autoroute was built using significant amounts of off-site fill deposited

directly onto the riverbed between the Victoria and Champlain bridges.

This work continued for several years. The land supporting the

Bonaventure Autoroute that is registered in the cadastre belongs to

Environnement Quebec. It should be noted that another portion of the

land below the autoroute does not appear on maps, which instead show

the river. Since it has not been registered in the cadastre, we can only

speculate that it belongs to the same owner.

After EXPO ‘67, these properties were not used again until 1973,

when a runway, terminal and maintenance facilities for short-takeoff-and-landing aircraft (avions à décollage et atterissage court—ADAC)

was built.

After the “ADACport” was abandoned in 1980, a layer of backfill

was added to the surface of the northern portion of the site. The St. Lawrence waterfront, downstream from outlet of the St. Pierre sewer line,

below the Champlain Bridge and up to the Bonaventure Autoroute, was

still being backfilled in certain places as late as 1982 in order to straighten

the shoreline and prevent the accumulation of wastewater from the

sewer line.

In 1984, construction work began on a maintenance centre at Point

St. Charles, on the southwest portion of the Technoparc, for Via Rail

Canada (VRC), a Crown corporation. A portion of the site was also used

to store granular material until the end of 1984, and as a snow depot during the winter of 1985.

APPENDIX 8 231
In 1985, EC, EPB Montréal published a study of gas emissions at

the ADACport site (“Étude des gaz site de l’ADACport”). The report

stated that as part of a program to assess waste disposal sites on federal

lands in Québec, the ADACport site was slated for further work because

of potentially serious impacts related to gas and leachate production.

On 3 August 1989, the Technoparc site, with an area of 456,057

square meters, was sold to the City of Montréal by Her Majesty in Right

of Canada and the Montréal Port Corporation. The property was then

identified as “Blocks 2 and 5.” In ensuing years, Block 5 was subdivided

several times to build streets and to allow the sale of several portions to

new owners. Nineteen (19) subdivided lots were created from Block 5,

although it was never completely subdivided.

These lots received their own cadastral numbers, and some were

subdivided again, for a total of 30 distinct lots. The portions of Blocks 5

and 2 that were not subdivided were given a separate cadastral designation.

On 19 September 1989, the City of Montréal resold a portion of

Block 5 to Teleglobe Canada, comprising an area of 18,750 square

meters.

In August 1991, following a complaint, the Emergencies Section of

EC, EPB Montréal began an initial legal survey in this sector and demonstrated that hydrocarbons contaminated with PCBs and metals were

flowing into the river.1 Following these results, representatives of the

Emergencies, Investigation and Intervention sections met with the various stakeholders at the time, i.e., CN, VRC, the City of Montréal, and the

MEF [ministère de l’Environnement et de la Faune] in order to pool the various available sources of information and have the party responsible for

the site take charge of recovering these substances. Ever since the discharges into the river were first noticed, EC has thus intervened immediately and practically, taking measures to limit their impact on the

aquatic environment and thereby adhering to the provisions of the FA

[Fisheries Act].

In October 1991, hydrocarbons contaminated with PCBs were once

again seen flowing into the St. Lawrence, and once again EC, EPB

232 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

1. Translator’s note: there appears to be an error in the French original here. It reads “En

août 1991, suite à une plainte, la section des urgences d’EC, DPE Montréal procède

à un premier relevé légal dans ce secteur par et démontre l’écoulement au fleuve

d’hydrocarbures contaminés par des BPC et des métaux.” [Italics added]
Montréal inspectors intervened immediately, ensuring that measures be

taken to recover these substances in the vicinities of the Technoparc and

the Victoria Bridge. CN and the City of Montréal agreed to share the

costs of maintaining booms in areas where the discharges had been

observed and of recovering these hydrocarbons. The Crown corporation

also agreed to study the implementation of corrective measures to permanently stop the hydrocarbons from flowing into the river. The engineering firm that carried out the study initially proposed waterproofing

the shoreline in the areas where hydrocarbons were resurging and

collecting them with a system of pumping wells.

Following this meeting, CN decided to take over operations but

insisted strongly that it admitted no responsibility for the discharges.

Subsequently, the costs of collecting the hydrocarbon discharges were to

be shared between the City and CN. It should be noted that representatives of EC, EPB Montréal had at that time consulted a Department of

Justice (DOJ) attorney.

On 30 November 1995, the City of Montréal sold another portion of

Block 5, with an area of 12,805 square meters, to Bell Mobility Cellular

Inc.

Between 1993 and 1996, the Jacques Cartier and Champlain

Bridges Corporation Inc. had planned to rebuild drainage ways “T” and

“O” of the Bonaventure Autoroute. Two environmental characterization studies carried out in 1993 and 1996 were submitted to EC. The Ministry drew up recommendations concerning the disposal of soil and

contaminated wastes from the excavation work. The work to rebuild

drainage ways “T” and “O” adhered to these recommendations and

schedules.

On 29 June 1999, the City sold another portion of Block 5, with an

area of 20,346 square meters, to Société immobilière Parctech. inc.

On 4 June 1999, the City sold Blocks 5-18 and 5-19, with a total area

of 47,870 square meters, to Cité du cinéma (MEL) inc.

In December 1999, the provincial government issued a press

release along with the mayor of Montréal announcing grants totaling

$2.35 million awarded as part of the Urban Contaminated Sites Rehabilitation program to decontaminate lands needed for six (6) new development projects. The Technoparc project was among the six (6) projects

targeted by the program.

APPENDIX 8 233
On 6 March 2002, the City of Montréal sold lot 2597381, with a total

area of 70,499 square meters, to Cité du cinéma (MEL) inc.

Today, the Technoparc is managed by the City’s department of

economic development for commercial and industrial development

purposes. To improve the quality of the surface materials, the topography and the drainage in the eastern and central portions of the

Technoparc, the City elevated the land with backfill imported from three

different construction sites in Montréal and with soil from the Technoparc itself. According to our cadastral research, the City sold 37 percent

of the Technoparc’s area to other owners.

The files consulted show that between 1978 and 1998, characterizations were carried out in different locations. Certain occupants such as

CN carried out their own studies and installed 117 piezometers along

the southern boundary with neighboring properties in order to permanently recover the contaminants before they contaminated neighbouring properties or the river.

One of these studies was carried out on behalf of EC, EPB Montréal

and the MEF. The services of two consultants were employed, who carried out a thorough characterization of the site and a statistical analysis.

They drilled and took samples at depths ranging from 4 to 26 meters.

The soil data comprised a total of 67 measurements and a maximum

of 33 physicochemical variables. The ground and surface water data

comprised 44 measurements and a maximum of 75 physicochemical

variables.

Their report, published in 1990, showed that the soil and water

were contaminated by a host of substances, including some at very high

levels.ii For surface and ground water, these substances included

ethylbenzene, benzene, toluene, styrene, xylene, total PAHs,

chlorophenols, and dichloromethane. In the subsurface, they included

zinc, nickel, silver, cadmium, arsenic, phenols, PAHs, and PCBs. The

report also included maps showing where the various contaminants

were concentrated.

The report stated that “the subsurface analysis and the soil showed

strong variability (expressed by the coefficients of variation) of concentrations measured throughout the site for most of the variables measured. Assuming negligible inaccuracies in the laboratory analyses,

and given that the samples were taken at numerous stations spread

throughout the site at different depths, such variability indicates a very

heterogeneous distribution of contaminants on the site.” These studies

234 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
demonstrated that there was indeed significant and non-point-source

contamination of the soil and groundwater by a wide range of substances throughout the properties of the Technoparc region.

In 1996, CN withdrew all contributions to further characterization

work and hydrocarbon interception, convinced that the installation of

its 117 piezometers and the system of vacuum pumps would recover the

floating phases along the southern boundary of its property and no longer contribute to contamination of the river.

On 18 February 1998, ______, head of the laboratory division, public works department, sent a note to _____, commissioner of the economic development department, in which he took stock of progress in

the efforts to put permanent corrective measures into place to halt the

flow of hydrocarbons into the river. He made reference to different

scenarios put forward for their interception and recovery.iii

On 26 February 1998, _______, engineer, and _______,2 principal

consultant of the Intervention and Restoration section of the EPB’s

Technology and Restoration division, submitted a report on the use

of “biobarriers” to biodegrade hydrocarbons and recalcitrant organochlorines contaminating the aquifer at the ADACport.iv The project

planned for representative samples at strategic locations along the

Technoparc waterfront to determine the amount of contamination from

floating and dissolved phases, with a view to making recommendations

concerning the installation of a watertight barrier as well as the recovery

and treatment of the hydrocarbons. The project was not given the

go-ahead at the time.

In April 1998, representatives of EC, EPB Montréal gave a presentation on environmental regulations relevant to the flow of hydrocarbons into the river during a workshop entitled “Écoulement

d’hydrocarbures au fleuve St-Laurent — Atelier d’analyse de la valeur”

organized by the City of Montréal. Several interviews were granted to

the media. Several briefing notes, the last of which dates from April

2002, were written on behalf of the Minister’s office over the years.

In October 1998, the Inspections section of EPB Montréal undertook a second legal survey after newspaper articles noted the presence of

barrels containing used PCB-contaminated oils near the Victoria Bridge.

The survey confirmed the presence of PCBs in the water samples taken

APPENDIX 8 235

2.
from the river and in the liquid contained in storage barrels located near

the shore.

A warning letter dated from November was sent to City of

Montréal representatives, claiming an infraction under paragraph 36(3)

of the FA.v However, following the reception of a legal opinion to the

effect that the Storage of PCB Materials Regulations3 could not apply

under these circumstances, no measures to enforce the law were taken

with respect to the storage of barrels containing PCB-contaminated

water.vi Since then, the City of Montréal has put into place measures,

through the services of a specialized firm, to recover, pump and dispose

of the substances recovered.

On 21 October 1998, representatives from EC Programs and

Inspections, EPB Montréal and from the MEF met to discuss the problem

of substances flowing into the river. Among the recommendations

issued, the need for closer collaboration between the City of Montréal,

the MEF and EC was stressed, along with the development of an action

plan by the three levels of government. Financial assistance was foreseen to carry out the necessary work.vii

In June 1999, the City consulted several partners, including EC and

the provincial government, to assess short- and medium-term actions.

The City subsequently allocated funds for a new site characterization.

In a letter dated 18 October 1999, the City of Montréal public works

department informed the director of EPB Montréal that during a city

council session held on 14 September 1999, an engineering firm was

mandated to carry out supplementary environmental characterization

and final design studies for intercepting and recovering floating hydrocarbon phases at the Technoparc site.viii

Between October 1998 and January 2002, personnel from the

Inspections section of EPB Montréal carried out fourteen (14) supplementary visual inspections at the site and issued several verbal directives to City officials. In each case, the goal was to rectify the immediate

situation in areas where oily substances were observed to be flowing

into the river, notably through the use of absorbents and the replacement

or adjustment of booms to reduce their spread into the aquatic environment.ix This section carried out regular follow-ups of all work done by

236 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

3. Translator’s note: the French original here refers to the “Règlement sur le stockage de

BPC,” which I assume refers to the federal “Règlement sur le stockage des matériels

contenant des BPC” and for which I have provided the English version.
City of Montréal consultants and ensured that the measures for retention and recovery put into place were functional.

In several formal and informal meetings with various stakeholders

involved in the file, representatives from the Technologies and Interventions division of EPB Montréal attended as technical and scientific

consultants. Several City of Montreal documents (reports, studies, estimates, etc.) were submitted to EPB Montréal for comment. EPB also had

representatives on the Temporary and permanent measures follow-up

committee (Comite de suivi des mesures temporaires et permanentes) and the

Montreal Centre of Excellence in Brownfields Rehabilitation Committee.

On 25 January 2002, EPB Programs representatives met with City

officials and requested the City of Montréal action plan, including the

project schedule.x It was at this point that the City began tendering procedures.

The City of Montréal divisional manager sent a letter to the director of the EPB, dated 28 January 2002. The letter stated that following the

allocation of $2.9 million, the City was in the process of receiving submissions for building an interception and recovery system for hydrocarbon floating phases at the Technoparc. A new contract was expected to

be issued shortly.xi

In March 2002, SNC Lavalin submitted a supplementary characterization report and a final design study for intercepting and recovering floating hydrocarbon phases.xii This, following the creation of the

Technoparc in 1989 and the requirements of the MEF set out in the sale

agreement. The SNC report confirmed the presence of significant

amounts of PAHs and/or PCBs in the water of certain observation wells

near the waterfront. The consultant reported that from October 1999 to

October 2000, weekly inspections of the river showed resurgences ranging from very significant to weak, with the most intense period being the

fall of 1999, when the water level in the river was very low.

PCBs were detected in a high number of wells throughout

the Technoparc. Samples were taken from the waterfront, opposite

Fernand-Séguin Street, which is situated more or less in the center of the

Technoparc. This location is made up of fill materials that support the

Bonaventure Autoroute. The results of the analyses indicated that total

PCB contents were on the order of 110 ppm. For PAHs, the highest measured values came from a well located approximately 225 meters north

of one of the booms, where the complainants appeared to have taken

some of their samples.

APPENDIX 8 237
The contamination mass in dissolved phases in the groundwater

was established at 0.4 to 2.8 kg for the various PAH compounds, 1.1 kg

for total PCBs, and 10,370 kg for C10–C50 petroleum hydrocarbons. The

characterization of the river water opposite the Technoparc showed that

concentrations fell short of applicable quality criteria and detection limits, and that there was no detectible increase compared with the control

station upstream from the Technoparc.

The same month, the Ville-Marie and Jacques-Cartier ZIP committees requested a meeting with the EPB director for the month of June. In a

letter dated 18 April 2002, the director confirmed she would attend in

order to discuss the Technoparc issue and develop a regional partnership with them

On 2 April 2002, representatives of the EPB Programs division met

with City of Montréal representatives,xiii who explained the planned

installation of a barrier to intercept floating phases, with work to begin

in the fall of 2002. The EPB representatives expressed their concerns

about the ability of such a structure to intercept the dissolved phase. One

EPB representative specifically questioned the engineer representing

the engineering firm about the stability and permanence of the proposed

barrier. The engineer answered that all work would be done according

to standard trade practices, with no other guarantee. The City representatives confirmed that as planned, the barrier project would not intercept dissolved phase contaminants, and that no toxicity trials had been

done at any time to determine if they were toxic. The EPB representatives specifically stated that they wished to take part in a roundtable initiated by the City of Montréal.

On 3 April 2002, Minister David Anderson met with City of

Montréal representatives about the Technoparc issue. According to the

minutes of this meeting, the City was preparing to build a watertight

wall to prevent floating phase hydrocarbons from flowing into the

river.xiv The project was estimated to cost $7 million, with supplementary costs of $350,000 for pumping and disposal of the hydrocarbons.

Even so, it was known that some contaminants would remain in the portion of the site below and along the Bonaventure Autoroute, and thus

[in] the river, which could not be recovered by the work and which

would continue to flow into the river for a number of years. Other means

would have to be used to collect these contaminants. The minister confirmed the backing of EC.

238 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
On 16 April 2002, the EPB director met with City representatives as

part of their divisional summit. Discussions of the Technoparc issue

took place.xv

On 19 April 2002, investigators and a specialist from the EPB

Intervention section went to the waterfront along the Bonaventure

Autoroute, opposite the Technoparc. They observed iridescent films on

the river’s surface in two locations where absorbent booms were permanently installed. This phenomenon is usually associated with the presence of oily substances. They noted the complexity of collecting all the

evidence necessary to establish criminal responsibility.

On 13 May 2002, the EPB director sent a letter to _____, engineer

and head of the laboratory division for the City of Montréal’s environment and road network department.xvi She recommended that the City

undertake bio-assays to determine the extent of the dissolved-phase

contamination. She offered the technical support of recovery experts

and the resources of Environment Canada laboratories in planning the

sampling work and interpreting the analytical results.

An analysis of the information available in this file shows that from

1903, and even before, until its closure in 1966, citizens contributed

greatly to filling the Point St. Charles city dump and the lands that make

up the Technoparc. The industrial companies that occupied and operated on the site also added large quantities of various substances, both

solid and liquid. This occurred first in the wetlands along the river’s

shoreline and later on the riverbed itself, to a depth estimated at about 12

meters. A significant portion of the fill that covers and was used to create

the Technoparc and the Bonaventure Autoroute came from off-site, and

we do know the extent of the contamination of the original material in

the locations where this off-site fill was taken. The contaminants have

been moved about over the years in various ways, especially though

excavation, blasting, and filling done in the current area of the Technoparc and during the construction of the Bonaventure Autoroute infrastructures.

The various characterizations that have been done confirm that the

Technoparc is contaminated to a significant depth by a large number of

substances. The environmental practices at the time were guided by

practical or sanitary considerations. These were standard practices,

were not considered illegal and were known to all governmental authorities. These activities continued until the early 1970s, when increasing

public concern for the environment resulted in the adoption and

APPENDIX 8 239
enforcement of new laws governing, among other things, waste management and disposal.

Sanitary and storm sewers, both existing and no longer in use,

along with groundwater, constitute primary pathways for the flow of

hazardous substances into the river. In addition, spring runoff changes

the height of the river and contributes to “washing” the lands, freeing

some of the contaminants contained in their waters.

ANALYSIS AND RECOMMENDATIONS

Our department is responsible for enforcing article 36 of the FA

under the terms of theDepartment of the Environment Act and a memorandum of agreement entered into in May 1985 between the deputy minister of Fisheries and Oceans and the deputy minister of EC. Following the

complaint filed by Mr. Green and Mr. Mattson, the mandate of the investigator assigned to the file is essentially to determine if it is possible to

collect enough evidence to lay criminal charges under the FA, against a

private individual or a corporate body. He therefore had to take into

account legal opinions and recommendations in similar cases as well as

relevant jurisprudence.

He did not consider other types of legal recourse, such as those

involving civil liability or others set out in Canadian legislation, nor did

he comment on the technical solutions being studied; these were not

under the purview of his mandate or his expertise.

The alleged offense falls under paragraph 36(3) of the FA, i.e., to

deposit or permit the deposit of a deleterious substance of any type in

water frequented by fish or in any place under any conditions where the

deleterious substance or any other deleterious substance that results

from the deposit of the deleterious substance may enter any such water.

Before an investigator can recommend to legal counsel that criminal charges be laid, he must first ensure that all evidence proving the

alleged offense beyond a reasonable doubt has been collected. First of all, he

must answer the following two questions: When did the offense occur,

and by whom [was it committed]?

The courts have said that for a person to be proven guilty of committing an offense or allowing it to be committed, one must prove,

beyond a reasonable doubt, that he or she was instrumental in or was in a

position to exercise continuous control over the prohibited activity. Paragraph 38(4) of the Fisheries Act defines such a person as someone who

240 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
“owns the deleterious substance or has the charge, management or control

thereof, or causes or contributes to the causation of the deposit or danger

thereof[.]”

We cannot prove beyond a reasonable doubtthe source of a deleterious

substance and the specific path it took to flow into the river while eliminating all other possible sources of contamination.

We cannot prove beyond a reasonable doubt that during a specific

period, an individual or corporate body deposited a deleterious

substance, or was in a position to exercise continuous control over the

prohibited activity in the location where a deleterious substance was

deposited, in the river or another location, allowing the deleterious substance or any other deleterious substance that results from the deposit of

the deleterious substance to enter the water.

The human activities that generated the deleterious substances

and that allowed their deposit into the river occurred before the deposit

was noticed by inspectors in 1991. This is well outside the limitation of

suits set out in paragraph 82(1) of the FA, all amendments included.

Not only were all governmental authorities at the time aware of

these activities, many of these lands were sold by one government or

another, or by a Crown corporation, to the City of Montréal with full

awareness of the soil contamination. Some of the sales contracts contain

clauses that specifically relieve the Crown or one of its corporations (the

seller) of all liability for the quality of the soil and subsurface. In the two

(2) bills of sale in which the City of Montréal is the purchaser, it is mentioned that Her Majesty (in right of Canada or Québec, as applicable) is

“freed from all liability related to the state of the property’s soil and

subsurface, and [the purchaser] wholly and formally renounces all

claims and/or actions against Her Majesty related to the state of the soil

or subsurface.”4

Moreover, “the City does not require Her Majesty to provide titles

or search of titles certificates for the site and relieves Her Majesty of all

liability concerning the value of the title.” Many other irregularities concerning the property’s title have been noted, and it is clear that the lands

were sold to the City of Montréal without the identity of the titleholder

being clearly established.

APPENDIX 8 241

4. Translator’s note: not an official citation but a translation from the French; the clarification in square brackets is my addition.
In another similar case, an inspector asked a prosecutor and a lawyer from the civil section of the DOJ to examine the possibility of laying

criminal charges and to determine whether EC could ever be reproached

for not having fulfilled its obligation to enforce the FA and therefore be

exposed to lawsuits. The opinion, received in July 2001, essentially

stated that paragraph 36 of the FA did not constitute a specific obligation

on the part of the ministry to take action.xvii

In 1981, this question had already been addressed at the Federal

Court by a group of people who wished the Departments of Fisheries

and Environment to enforce, according to their purviews, the Seal Hunt

Regulations.5 Evidence showed that infractions had been reported that

that in certain cases, no measures had been taken. The essence of the

judgment was that “one can certainly not say that infractions are to be

tolerated or approved of, but the enforcement of a law or a regulation is a

question of degree.”6

In another case, another group wished to compel the Minister of

Consumer and Corporate Affairs to enforce certain statutory provisions.

The judge concluded that no such obligation had been foreseen and that

accusatorial procedures fell to the Attorney General, who, when carrying out accusatorial functions, exercised administrative powers that

were not subject to control by the courts except in cases of flagrant

impropriety.

Finally, in a more recent case, the Federal Court of Appeal handed

down a judgment in a similar case involving the Federal Minister of Revenue. While the judgment noted that the Minister is required to uphold

the law and must take all reasonable measures to enforce its provisions,

the Court deemed that political factors falling outside the jurisdiction of

the court must be taken into consideration since they bear upon the manner in which the Law must be applied.

These decisions are relevant with respect to actions already taken

by representatives of the Ministry. This is especially true considering

that interventions were taken in the field and corrective measures were

requested, and also given that technical support was offered by EC, EPB

Montréal to the stakeholders involved, including the City of Montréal,

242 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

5. Translator’s note: The French here refers to the Règlement sur la chasse aux phoques. I

have translated this but could not find any reference to any Canadian regulation of

this name. The modern equivalent would appear to be the Marine Mammal Regulations.

6. Again, not an official citation but rather a translation from the French.
in order to help put suitable and permanent solutions into place to intercept and dispose of the contaminants flowing into the river.

Even before the Investigations section was involved in the file, a

meeting was held between several EPB Montréal representatives and

prosecutors and attorneys of the civil section of the DOJ in Montréal. A

presentation of the Technoparc issue was given and discussions followed. They provided the following opinion: “Given the technical and

scientific complexity of the file, the significant uncertainty of the true

source or sources of the contamination, uncertainties concerning the

owners and users of the site at the time, uncertainties concerning the

possible parties responsible for the state of the site, the possible contribution of sources external to the Technoparc site itself, it is highly unlikely

that the file can be brought before the courts.” They believed that a joint

approach to searching for a solution that would be acceptable in terms

of environmental protection and of enforcing the law was the best

answer.xviii

The investigator noted that since the deposits into the river were

first brought to his attention, EC has fulfilled its obligations and continues to do so to the extent this is possible and given the powers attributed

to him under the law with respect to enforcing the FA. He recommends

continuing the work done by the experts of the Intervention and Restoration section with the groups involved, including the City of Montréal,

toward implementing an effective and permanent technical solution to

intercept and dispose of the floating and dissolved phases. In this

respect he recommends closing the file.

APPENDIX 8 243
DOCUMENTS CONSULTED

i. Rapport de renseignement sur les titres de propriété no QC-2002-

06.

ii. “Analyse statistique des données de caractérisation des lieux

d’élimination des déchets,” December 1990. Prepared by Service

d’analyse de données MESIC inc. and by G.R.E.B.E. inc.

iii. Note dated 8 February 1998, from ____________ of the City of

Montréal public works department to _______ of the economic

development department.

iv. _____________, EC, EPB Montréal, report summary of “Essais

de biodégradation à l’aide de “biobarrières” des hydrocarbures

pétroliers et des produits “organochlorés” récalcitrants, contaminant un aquifère, à l’Adacport.”

v. Letter of warning to the City of Montréal, dated 12 November 1998,

(dossier LP363-0017, vol. 2 doc. page 56).

vi. Report of telephone conversation with Mr. _________, EC legal

adviser, 27 October 1998 (dossier LP363-0017 vol. 2 doc. Page 30).

vii. Minutes of meeting of 21 October 1998 between EC and the MEF.

viii. Letter dated 18 October 1999, from the Service des travaux publics,

Ville de Montréal, to ________, director, EPB Montréal.

ix. EC, EPB Montréal dossier: LP363-0017, vols. 1 and 2.

x. Minutes of meeting on 25 January 2002 between EC and the City of

Montréal.

xi. Letter dated 28 January 2002, from _________, City of Montréal

engineer, to Madame __________, director, EPB Montréal.

xii. SNC-Lavalin. Projet d’interception et de récupération des phases

flottantes d’hydrocarbures Technoparc, Montréal. Caractérisation

environnementale complémentaire. March 2002.

xiii. EC, EPB Montréal, minutes of meeting of 2 April 2002.

244 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
xiv. Minutes of EPB Montréal meeting of 3 April 2002.

xv. Minutes of EPB Montréal meeting of 16 April 2002.

xvi. Letter dated 13 May 2002 from M. ______, director, EPB Montréal

to M. _____________, City of Montréal engineer.

xvii. Legal opinion, Me _______ of MDJ, dated 13 July 2001. Dossier

LP363-0044.

xviii. Minutes of meeting with MDJ prosecutors Me ______, ______ and

______, 28 February 2002.

Signatures

Investigator

APPENDIX 8 245

APPENDIX 9

Environment Canada, Investigation Report

(April 2003)

FILE

Région du Québec Quebec Region

Environmental Protection Branch

105 Mill Street, 4th Floor

Montreal (Quebec) H2Y 2E7

April 24th, 2003

Mr. Daniel Green

Executive Director

Société pour Vaincre la Pollution

Mr. Mark Mattson

Executive Director

Environmental Bureau of Investigation

225 Brunswick Avenue

Toronto, Ontario M5S 2M7

Objet: Conclusion of the investigation on the Technoparc site

Sirs,

This letter is in response to your request to open an investigation

regarding the alleged deposit of deleterious substances in the St. Lawrence River. According to your April 11th. 2002 request, these substances

would come from the Technoparc site in Montréal. As indicated in our

letter sent to you on April 22nd. Environment Canada opened an investigation relatively to the general prohibition concerning the deposit of a

deleterious substance in water frequented by fish as prescribed under

section 36(3) of the Fisheries Act.

We have investigated the historical facts of the Technoparc site, the

origin and type of the contamination and the geology of the site. The

analysis that we have done does not allow us to determine the precise

source of the deleterious substances released to St. Lawrence River.

Therefore, Environment Canada brings closure to the investigation that

you requested on April 11th, 2002.

APPENDIX 9 249
Please be assured that Environment Canada is continuing its

efforts with different stakeholders to find a sustainable solution to

protect the environment.

We thank you for your interest in the protection of the St. Lawrence

River.

Sincerely,

Director

Environmental Protection Branch

250 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
Montréal Technoparc

File: QUÉ020412-001

Investigation Report

Submitted 22 April 2003

By _________

Investigator, Investigations Section, EPB

APPENDIX 9 251
[1.0] Introduction1

Daniel Green, Executive Director of the Société pour vaincre la pollution (SVP), and Mark Mattson, Executive Director of the Environmental Bureau of Investigation (EBI), filed an investigation request dated 11

April 2002, with the offices of the Environmental Protection Branch

(EPB) of Environment Canada in Montréal. The complainants assert that

the site of the Montréal Technoparc is discharging harmful toxic substances into the St. Lawrence River. Accompanying the investigation

request were a sampling report of tests carried out along the shoreline

adjacent to the Technoparc lands, certificates of analysis, and aerial photographs taken in October and November 2000. The analytical results

obtained by the complainants indicate that a number of the samples

taken at this location contained PCBs, PAHs, oils and greases.

Subsequent to the filing of the complaint with the EPB, which

asserted an infraction under paragraph 36(3) of the Fisheries Act(FA), the

EPB opened an investigation to collect the evidence needed to prove the

infraction and to assign criminal liability to one or several specific parties. Paragraph 36(3) states that it is prohibited to deposit or permit the

deposit of a deleterious substance of any type in water frequented by

fish or in any place under any conditions where the deleterious substance or any other deleterious substance that results from the deposit of

the deleterious substance may enter any such water.

The federal Department of Fisheries and Oceans (DFO) has the

statutory responsibility to administer and enforce the Fisheries Act.

However, in 1978, the prime minister assigned Environment Canada the

responsibility for administering enforcing the anti-pollution provisions

of the Fisheries Act that cover the deposit of deleterious substances in

water frequented by fish. A memorandum of understanding between

the DFO and the Department of the Environment sets out the responsibilities of the two parties in administering and enforcing the anti-pollution provisions of the Fisheries Act. All EPB documents were consulted,

including documents kept in the archives, in the Technology and Intervention Division, and in the Inspection and Emergencies sections. The

investigator also requested further clarifications from EPB resource personnel. Other documents were consulted at the registry office for the

Montréal registration division (Bureau de la publicité des droits de la

circonscription foncière de Montréal) and were obtained from the Ministry

of Natural Resources. All documents relevant to the identification of the

252 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

1. This document is a translation of the original report text in French. Should any variance be found between this English language version and the French language original, the latter should be preferred.
different property owners and to the transfer of property titles were

recorded in the information report.1

[2.0] Historical overview

The different lots comprising the Technoparc are located in an

urban area on the southeast portion of the Island of Montréal, between

the Champlain and Victoria bridges. The Technoparc is bounded to the

east by the St. Lawrence River and the Bonaventure Autoroute, and to

the west by the Canadian National (CN) rail yard, along the Butler line.

The historical details that follow are based on the available information.

However, some details dating back to the 19th century are lacking or

cannot be confirmed.

The entire current area of the Technoparc was originally a riparian

wetland along the St. Lawrence River and thus not registered in the

cadastre. Indeed, maps, updated and obtained from the Ministry of Natural Resources, still show significant portions of the area as being part of

the St. Lawrence River, whereas today they are man-made lands built up

on the riverbed. Some have not yet been registered in the cadastre and no

documentation attesting to their current owners could be found. A portion of the site is in fact the former “Point St. Charles dump,” which dates

from the mid-19th century.

In 1840, Point St. Charles was part of the countryside surrounding

Montréal, with the particularity that most of the land belonged to various religious communities. In 1853, the Grand Trunk Railway of Canada

acquired almost all the lands between Point St. Charles and St. Lambert.

In total, 120 arpents were purchased from four Point St. Charles religious

communities.

In 1864, the City of Montréal’s Waterworks Committee assigned

one of the Point St. Charles properties to the incineration department to

be used as a dump. In 1888, the City of Montréal acquired four other lots

registered in the cadastre, including two from religious communities, in

order to create a dump at the southern end of Ash Street at Point St.

Charles. Though the dump had been used for years, it was only officially

established by the City in 1902 and closed in 1966, when it became a

parking lot for EXPO ‘67. The dump received between 4 and 12 meters of

household and industrial waste, along with dry materials. The oldest

section was filled prior to 1933.

In 1925, given the advance of the “Point St. Charles dump,”

primarily on the southern side, the Harbour Commission (Port of

APPENDIX 9 253
Montréal) authorized the City to dump garbage on lands over which it

held jurisdiction, extending to the “Southern Boundary of the Harbour.”

According to the documents consulted, in 1909, the Harbour Commission declared that legally, the port’s property extended over 16 miles

along both the eastern and western shores, at the high water mark.11

After 1955, the area filled in was primarily toward the Victoria Bridge. In

its post-1937 expansion, the dump was located on Port of Montréal

property.

In 1937, the City of Montréal exchanged properties with CN. The

City transferred the site located on the St. Gabriel pier at the south end of

Ash Street, where CN built a new switching yard, bounded on the southeast by the Butler Line.11

In 1966, the lands that today make up the Technoparc were also

leveled and covered with a thin layer of gravel, to be used as a parking

lot for EXPO ‘67, called the Victoria Autoparc. This was when problems

related to gas produced by decomposing organic matter were first

encountered.

At the same time, the Bonaventure Autoroute was built using significant amounts of off-site fill deposited directly onto the riverbed

between the Victoria and Champlain bridges. This work continued for

several years. The land supporting the Bonaventure Autoroute that is

registered in the cadastre belongs to Environnement Québec. It should

be noted that another portion of the land below the autoroute does not

appear on maps, which instead show the river. Since it has not been registered in the cadastre, we can only speculate that it also belongs to

Environnement Québec.

After EXPO ‘67, these properties were no longer in use. In 1973,

the federal Department of Transport decided to build a runway for

short-takeoff-and-landing aircraft (avions à décollage et atterissage court—

ADAC), along with a terminal, a parking lot and fuel tanks. After the

“ADACport” was abandoned in 1977 and its facilities finally dismantled

in 1991, a layer of backfill was added to the surface of the northern portion of the site.11

The St. Lawrence waterfront, downstream from outlet of the

St. Pierre sewer line, below the Champlain Bridge and up to the

Bonaventure Autoroute, was still being backfilled in certain places as

late as 1982 in order to straighten the shoreline and prevent the accumulation of wastewater from the sewer line.

254 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
In 1984, construction work began on a maintenance centre at Point

St. Charles, on the southwest portion of the Technoparc, for Via Rail

Canada (VRC). A portion of the site was also used to store granular

material until the end of 1984, and as a snow depot during the winter of

1985.

In 1985, the EPB published a study of gas emissions at the

ADACport site (Étude des gaz site de l’ADACport).15 The report stated that

as part of assessment program for waste disposal sites on federal lands

in Québec, the ADACport site was slated for further work because of

potentially serious impacts related to gas and leachate production.

On 3 August 1989, the Technoparc site, with an area of 456,057

square meters, was sold to the City of Montréal by Her Majesty in Right

of Canada and the Montréal Port Corporation. Research carried out in

the registry office for the Montréal registration division, along with

consultations of cadastral maps and documents accompanying maps

obtained from the Ministry of Natural Resources, indicate that the property was then identified as “Blocks 2 and 5.” In ensuing years, Block 5

was subdivided several times to build streets and to allow the sale of several portions to new owners. Nineteen (19) subdivided lots were created

from Block 5, although it was never completely subdivided. These lots

received their own cadastral numbers, and some were subdivided

again, for a total of 30 distinct lots. The portions of Blocks 5 and 2 that

were not subdivided were given a separate cadastral designation. On 19

September 1989, the City of Montréal resold a portion of Block 5 to

Teleglobe Canada, comprising an area of 18,750 square meters.

In August 1991, following a complaint about an oil slick on the St.

Lawrence below the Victoria Bridge, the Emergencies Section of the EPB

carried out an inspection and took a water sample (incident report

QUE-56, file 4461-2\M). Initially, since the source of the pollution was

unknown, Environment Canada covered the costs related to putting an

oil containment system into place on the river. Following these actions,

representatives from the Emergencies Section met separately with representatives from CN and Via Rail Canada. After the meeting, CN

decided to take over operations, but in a letter of intent it insisted

strongly that it admitted no responsibility for the discharges. Environment Canada next organized a meeting with representatives from the

City of Montréal, Environnement Québec, CN and Via Rail Canada in

order to pool the various available sources of information and have the

party responsible for the site take charge of recovering these substances.

During this meeting, it was stressed that CN was probably not solely

responsible for the discharges since the analyses of the samples taken

APPENDIX 9 255
from the river indicated the presence of PCBs and that the results from

samples taken in CN’s interception wells showed no PCBs. CN and the

City of Montréal agreed to share the costs of maintaining booms in areas

where the discharges had been observed and of recovering these hydrocarbons; CN also agreed to study the implementation of corrective measures to permanently stop the hydrocarbons from flowing into the river.

Ever since the discharges into the river were first noticed, EC has thus

intervened immediately and practically, taking measures to limit their

impact on the aquatic environment.

On 30 November 1995, the City of Montréal sold another portion of

Block 5, with an area of 12,805 square meters, to Bell Mobility Cellular

Inc.

Between 1993 and 1996, The Jacques Cartier and Champlain

Bridges Inc. had planned to rebuild drainage ways “T” and “O” of the

Bonaventure Autoroute. An environmental assessment report carried

out in 1996 was submitted to EC.16 The Ministry drew up recommendations concerning the removal and disposal of soil and contaminated

wastes from the excavation work. The work to rebuild drainage ways

“T” and “O” adhered to these recommendations and schedules.

On 4 June 1999, the City sold Blocks 5-18 and 5-19, with a total area

of 47,870 square meters, to Cité du cinéma (MEL) inc. On 29 June 1999,

the City sold another portion of Block 5, with an area of 20,346 square

meters, to Société immobilière Parctech. inc.

In December 1999, the provincial government issued a press

release, along with the mayor of Montréal announcing grants totaling

$2.35 million awarded as part of the Urban Contaminated Sites Rehabilitation program to decontaminate lands needed for six (6) new development projects. The Technoparc project was among the six (6) projects

targeted by the program.

On 6 March 2002, the City of Montréal sold lot 2597381, with a total

area of 70,499 square meters, to Cité du cinéma (MEL) inc.

Today, the Technoparc is managed by the City’s department of

economic development for commercial and industrial development

purposes. To improve the quality of the surface materials, the topography and the drainage in the eastern and central portions of the

Technoparc, the City elevated the land with backfill imported from

three different construction sites in Montréal and with soil from the

Technoparc itself. According to our cadastral research, the City sold 37

percent of the Technoparc’s area to other owners.

256 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
The files consulted show that between 1978 and 1998, a number of

characterization studies were carried out in different locations in this

sector by different occupants. For example, CN carried out its own studies and in 1996 installed a system of vacuum hydrocarbon pumps (117

pump wells) along the southern boundary with neighboring properties

in order to permanently recover the contaminants before they contaminated neighboring properties or the river.12

A report published in 1990 and done on behalf of the EPB and the

MEF [ministère de l’Environnement et de la Faune] showed that the soil and

water were contaminated by a host of substances, including some at

very high levels.3 The study included a thorough characterization of the

site and a statistical analysis, and this work showed that there was

indeed significant and non-point-source contamination of the soil and

groundwater by a wide range of substances throughout the properties of

the Technoparc region.

In 1996, CN withdrew all contributions to further characterization

work and hydrocarbon interception, convinced that the installation of

its system of vacuum pumps would recover the floating phases along

the southern boundary of its property and no longer contribute to contamination of neighbouring properties or the river.

On 18 February 1998, _______, head of the laboratory division,

public works department, sent an internal memo to _______, commissioner of the economic development department, in which he took stock

of progress in the efforts to put permanent corrective measures into

place to halt the flow of hydrocarbons into the river.4 He made reference

to different scenarios put forward for their interception and recovery.

On 26 February 1998, ________, engineer, and ________, principal

consultant of the Intervention and Restoration section of the EPB’s

Technology and Restoration division, submitted a report on the use

of “biobarriers” to biodegrade hydrocarbons and recalcitrant organochlorines contaminating the aquifer at the ADACport.5 The project

planned for representative samples at strategic locations along the

Technoparc waterfront to determine the amount of contamination from

floating and dissolved phases, with a view to making recommendations

concerning the installation of a watertight barrier as well as the recovery

and treatment of the hydrocarbons.

In October 1998, after the publication of an article in the daily Le

Devoir, EPB inspectors went to the site to carry out inspections of two

containers holding barrels of oil containing PCBs and located less than

APPENDIX 9 257
10 meters from the St. Lawrence. Samples taken confirmed the presence

of PCBs in the samples of liquid taken from some of the barrels in the

containers. Two letters of warning were sent to City of Montréal officials, asserting a violation of the Storage of PCB Materials Regulations

under the Canadian Environmental Protection Act (CEPA), and a violation

of paragraph 36(3) of the FA. Since then, the City of Montréal has used

the services of a specialized firm to dispose of the substances recovered.

On 21 October 1998, representatives from the Intervention and

Restoration Section, from the Inspections section, and from the MEF met

to discuss the problem of substances flowing into the river. Among the

recommendations issued, the need for closer collaboration between the

City of Montréal, the MEF and EC was stressed, along with the development of an action plan by the three levels of government.7

In April 1999, EPB representatives gave a presentation entitled “Le

Technoparc and Environnement Canada” dealing with environmental

regulations relevant to the flow of hydrocarbons into the river during a

workshop entitled “Écoulement d’hydrocarbures au fleuve St-Laurent

— Atelier d’analyse de la valeur” organized by the City of Montréal.

In June 1999, the City consulted several partners, including EC and

the provincial government, to assess short- and medium-term actions.

The City subsequently allocated funds for a new site characterization. In

a letter dated 18 October 1999, the City of Montréal public works department informed the director of EPB that during a city council session held

on 14 September 1999, an engineering firm was mandated to carry out

supplementary environmental characterization and final design studies

for intercepting and recovering floating hydrocarbon phases at the

Technoparc site.8

Between October 1998 and January 2002, personnel from the EPB

Inspections Section carried out 19 supplementary visual inspections at

the site and issued several verbal directives to City officials.2 In each

case, the goal was to rectify the immediate situation in areas where oily

substances were observed to be flowing into the river, notably through

the use of absorbents and the replacement or adjustment of booms to

reduce their spread into the aquatic environment. This section carried

out regular follow-ups of all work done by City of Montréal consultants

and ensured that the measures for retention and recovery put into place

were functional.

In several formal and informal meetings with various stakeholders

involved in the file, representatives from the Technologies and Interven258 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
tions division of EPB attended as technical and scientific consultants.

EPB also had representatives on the Temporary and permanent measures follow-up committee (Comite de suivi des mesures temporaires et

permanentes) and the Montreal Centre of Excellence in Brownfields

Rehabilitation Committee. Several City of Montreal documents (reports,

studies, estimates, etc.) were submitted to EPB for comment.

On 25 January 2002, representatives from the Intervention and

Restoration section of EPB met with City officials and requested the City

of Montréal action plan, including the project schedule, for the project to

build a contaminant retaining wall at the Technoparc. It was at this point

that the City began tendering procedures.9 The City of Montréal divisional manager sent a letter to the director of the EPB dated 28 January

2002.10 The letter stated that following the allocation of $2.9 million, the

City was in the process of receiving submissions for building an interception and recovery system for hydrocarbon floating phases at the

Technoparc. A new contract was expected to be issued shortly.

In April 2002, SNC-Lavalin submitted to the City of Montréal its

final report on the final design study for the interception and recovery of

floating hydrocarbon phases at the Technoparc,12 and in March 2002, a

final report on the project to intercept and recover floating hydrocarbon

phases at the Technoparc site.11 This, following the creation of the

Technoparc in 1989 and the requirements of the MEF set out in the sale

agreement. The SNC-Lavalin report confirmed the presence of significant amounts of PAHs and/or PCBs in the water of certain observation

wells near the waterfront. The SNC-Lavalin study also showed the presence of PCBs in a high number of wells throughout the Technoparc site.

The characterization of the river water opposite the Technoparc showed

that concentrations fell short of applicable quality criteria for surface

water and of detection limits, and that there was no detectible increase

compared with the control stations upstream from the Technoparc.

On 2 April 2002, representatives of the EPB Intervention and

Restoration Section met with City of Montréal representatives, who

explained the planned installation of a barrier to intercept floating

phases, with work to begin in the fall of 2002.13 The EPB representatives

expressed their concerns about the ability of such a structure to intercept

the dissolved phase.

On 19 April 2002, two investigators and a specialist from the EPB

Intervention and Restoration Section went to the waterfront along the

Bonaventure Autoroute, opposite the Technoparc. They observed iridescent films on the river’s surface in two locations where absorbent

APPENDIX 9 259
booms were permanently installed. The observation of iridescent films

on the water indicates the presence of oily substances (hydrocarbons).

On 13 May 2002, the EPB director sent a letter to ________, engineer

and head of the laboratory division for the City of Montréal’s environment and road network department.14 She recommended that the City

undertake bio-assays to determine the extent of the dissolved-phase

contamination. She offered the technical support of recovery experts

and the resources of Environment Canada laboratories in planning the

sampling work and interpreting the analytical results.

3.0 Analysis

An analysis of the information available in this file shows that from

1903, and even before, until its closure in 1966, the Point St. Charles city

dump and the lands that make up the Technoparc were filled with

domestic and industrial wastes. The industrial companies that occupied

and operated on the site also added large quantities of various substances, both solid and liquid. This occurred first in the wetlands along

the river’s shoreline and later on the riverbed itself, to a depth estimated

at about 12 meters. A significant portion of the fill that covers and was

used to create the Technoparc and the Bonaventure Autoroute came

from off-site, and we do know the extent of the contamination of the

original material in the locations where this off-site fill was taken. The

contaminants have been moved about over the years in various ways,

especially through excavation, blasting, and filling done in the current

area of the Technoparc and during the construction of the Bonaventure

Autoroute infrastructures.

The various characterizations that have been done confirm that the

Technoparc is contaminated to a significant depth by a large number of

substances. The report done on behalf of EC and the MEF3 lists a total of

67 measurements taken and a maximum of 33 physicochemical variables. The report indicates that the subsurface contains zinc, nickel,

silver, cadmium, arsenic, phenols, PAHs, and PCBs. The ground and

surface water data comprised 44 measurements and a maximum of

75 physicochemical variables, and the report indicated the presence

of ethylbenzene, benzene, toluene, styrene, xylene, total PAHs,

chlorophenols, and dichloromethane. The report also included maps

showing where the various contaminants were concentrated. The report

stated that, “the subsurface analysis and the soil showed strong variability (expressed by the coefficients of variation) of concentrations measured throughout the site for most of the variables measured. Assuming

negligible inaccuracies in the laboratory analyses, and given that the

260 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
samples were taken at numerous stations spread throughout the site

at different depths, such variability indicates a very heterogeneous

distribution of contaminants on the site.”

The March 2002 report of SNC-Lavalin11 confirmed the presence of

significant amounts of PAHs and/or PCBs in the water of certain observation wells near the waterfront. The consultant reported that from

October 1999 to October 2000, weekly inspections of the river showed

resurgences ranging from very significant to weak, with the most

intense period being the fall of 1999, when the water level in the river

was very low. The study also showed the presence of PCBs in a high

number of wells throughout the Technoparc. Samples were taken from

the waterfront, opposite Fernand-Séguin Street, which is situated more

or less in the center of the Technoparc. This location is made up of fill

materials that support the Bonaventure Autoroute. The results of the

analyses indicated that total PCBs were on the order of 110 ppm. For

PAHs, the highest measured values came from a well located approximately 225 meters north of one of the booms, where the complainants

appear to have taken some of their samples. The study established the

contamination mass in dissolved phases in the groundwater at 0.4 to 2.8

kg for the various PAH compounds, 1.1 kg for total PCBs, and 10,370 kg

for C10-C50 petroleum hydrocarbons. The characterization of the river

water opposite the Technoparc showed that concentrations fell short of

applicable water quality criteria or detection limits, and that there was

no detectible increase compared with the control stations upstream from

the Technoparc.

The various existing studies demonstrate first that there is contamination by various substances often recognized as being harmful and

second that the contamination is present on the Technoparc site and on

sites adjacent to it.

According to _______, the expert consulted by the Intervention

and Restoration Section, the bed of gravel upon which rest the sanitary

and storm sewers, both existing and no longer in use, constitute a primary pathway for the flow of groundwater—and hence of any contamination it may contain—into the river. In a heterogeneous environment

such as the Technoparc site, the contaminated sites at the end of the

Bonaventure Autoroute access roads are subject to “washing” when the

water rises during spring runoff, and when the water level recedes,

some of the contaminants contained therein are drawn into the St. Lawrence. The pollutant load (floating phase) and frequency of contaminants flowing into the river is thus higher during spring runoff.

APPENDIX 9 261
A verification was also carried out to determine the owners of the

lots making up the Technoparc site and the neighboring lands. None of

the lots making up the Technoparc site, along with some of the adjacent

lots, officially existed before 1980 because the cadastral designation was

created only after that time. There are thus no microfiche data before this

date that could identify their previous owners. Numerous irregularities

were noted with respect to the property titles.

For the lands immediately north of the Technoparc, currently

occupied by CN, the cadastral maps indicate that the area is not presently registered in the cadastre. Indeed, it is odd that this strip of land

along the northern boundary of the Technoparc is still characterized and

described on the maps as being the St. Lawrence River. It is quite obvious

that this portion of the river has been filled for decades. For the lands

immediately to the south of the Technoparc (upon which the

Bonaventure Autoroute is built, and the adjacent lands between the

autoroute and the river), the majority are not registered in the cadastre

and their owners are not indicated. Some are registered, however, and

these all belong to the Ministère de l’Environnment du Québec.

The information concerning the Technoparc site dates from 1989

and later because it was created in 1988. The land register contains no

indication as to the owners of the Technoparc site before its block sale to

the City of Montréal. The sale of the Technoparc site to the City involved

two separate contracts and two distinct owners for a single piece of land.

The site was given an official cadastral designation (Blocks 5 and 2) in

order to allow its block sale to the City in 1989. The two (2) deeds of transfer in which the City of Montréal is the purchaser specify that the seller is

freed from all liability for the state and quality of the soil and subsurface

and that the purchaser expressly relinquishes all legal recourse or action

against the seller concerning the state and quality of the soil and subsurface. It also adds that the City will not require the seller to furnish

titles or search of titles certificates and frees the seller of all liability with

respect to the value of the title. It is clear that the properties were sold to

the City despite the fact that the identity of the titleholder had not been

clearly established. The documents consulted demonstrate clearly that

the City of Montréal is no longer the sole owner of the Technoparc site.

After having purchased the site from Her Majesty in Right of Québec

and from the Montréal Port Corporation in 1989, the City subdivided

and sold the lots. From the date of this report, the Technoparc is made up

of 30 lots (including the lots that were designated and subdivided by the

city into streets and pedestrian walkways) belonging to five distinct

owners.

262 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
4.0 Conclusions

Before an investigator can recommend to the Attorney General of

Canada that criminal charges be laid, he must:

1. possess evidence for each of the essential elements of the alleged

infraction, and

2. be in a position to conclude, taking into account the criteria set out

in the Enforcement Policy of the Fisheries Act, that legal action is the

best course of action to achieve compliance in the shortest possible

time and a discontinuation of the alleged infraction.

Therefore, given:

1. the complex nature of the historical contamination at the

Technoparc site and neighboring lots, including contamination

from a dump, from industrial activities, and possibly by substrates

of an unknown nature used as fill at the site;

2. the irregularities surrounding the property titles over the years

and the impossibility of identifying certain owners and users of the

contaminated Technoparc site and neighboring lots;

3. the complexity of the water regime of the entire sector forming the

Technoparc and neighboring lots; and

4. the real difficulty in attributing the flow of contamination into the

river to a single source or sources of specific contamination;

the investigation’s technical and scientific complexity makes it impossible to demonstrate and collect the evidence necessary to identify the

source of a specific harmful substance and the path it takes into the river,

while at the same time eliminating all other possible sources of contamination, and to associate this path solely to the lots that make up the

Technoparc.

APPENDIX 9 263
Recommendations

The investigator recommends closing the investigation file. He

also recommends that Environment Canada continue to take all appropriate measures and action, as it has done in the past, to reach a viable

long-term solution.

[signature]

___________

264 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
References

1. Rapport de renseignement sur les titres de propriété no QC-2002-

06.

2. EPB dossier: LP363-0017, vols. 1 and 2.

3. “Analyse statistique des données de caractérisation des lieux

d’élimination des déchets,” December 1990. Prepared by Service

d’analyse de données MESIC inc. and by G.R.E.B.E. inc.

4. Note dated 18 February 1998, from _______ of the City of Montréal

public works department to _________ of the economic development department.

5. _______ and ______, EC, EPB Montréal, report summary of “Essais

de biodégradation à l’aide de “biobarrières” des hydrocarbures

pétroliers et des produits “organochlorés” récalcitrants, contaminant un aquifère, à l’Adacport.”

6. Letter of warning to the City of Montréal, dated 12 November 1998,

(dossier LP363-0017, vol. 2 doc. page 56).

7. Minutes of meeting of 21 October 1998 between EC and the MEF.

8. Letter dated 18 October 1999, from the Service des travaux publics,

Ville de Montréal, to __________, director, EPB Montréal.

9. Minutes of meeting of 25 January 2002 between EC and the City of

Montréal.

10. Letter dated 28 January 2002, from _______, City of Montréal engineer, ______, director, EPB Montréal.

11. SNC-Lavalin. Projet d’interception et de récuperation des phases

flottantes d’hydrocarbures Technoparc, Montréal. Caractérisation

environnementale complémentaire. March 2002.

12. SNC-Lavalin. Étude d’avant-projet d’interception et de récupération

des phases flottantes d’hydrocarbures au site du Technoparc, Montréal —

Rapport final. April 2002.

13. EC, EPB Montréal, minutes of meeting of 2 April 2002.

APPENDIX 9 265
14. Letter dated 13 May 2002 from ______, director, EPB Montréal to

_____ of the City of Montréal public works department.

15. Foratek International inc. Étude des gaz — Site de l’Adacport. March

1985.

16. The Jacques-Cartier and Champlain Bridges Inc. Rapport – Évaluation environnementale, projet de réfection du drainage, Sections “T” et “O” Autoroute Bonaventure. June 1996.

266 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
APPENDIX 10

Brief History of an Encroachment into a River

(City of Montreal, September 2004)

THE VICTORIA AUTOPARC

Brief

History

of an Encroachment into a River

Department of Infrastructure,

Transportation and Environment

S E P T E M B E R 2004

APPENDIX 10 269
Introduction

This document is a brief historical overview of the appropriation

and use of a portion of the St. Lawrence River waterfront over the more

than three hundred years of Montreal’s history, and in particular, the

history of a site named “Victoria Autoparc” a few decades ago, a huge,

128-acre parking lot built on the riverbed in 1966 by the Canadian Corporation for the 1967 World Exhibition.

The purpose of this brief historical overview is to illustrate the

changing use of the St. Lawrence waterfront between the current locations of the Victoria and Champlain bridges, starting with the early colonization of Ville-Marie, to the period of the St. Pierre Common, and up

until the development of a site for non-polluting light industry focused

on new technology and communications. Increasingly, a portion of this

site has come up in discussions related to the creation of a recreation and

tourism area that would be accessible to the population of Montreal.

A site whose previous uses caused significant contamination of the

subsurface and whose drainage into the St. Lawrence Rive today calls

for action by both the various owners, occupants or occasional users and

those who contributed to this state of affairs.

Written in a narrative style, this short text refers to various historical documents, maps and aerial photographs to help the reader better

appreciate and assess the use of the St. Lawrence waterfront at Point St.

Charles.

Deputy Director

Department of Infrastructure, Transportation and Environment

City of Montreal

270 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
Table of Contents

Introduction p. 270

Table of Contents p. 271

List of Figures p. 272

1. Ville-Marie at the time of the Congregation of

Notre-Dame de Montréal p. 273

2. Point St. Charles at the dawn of the industrial age p. 275

3. The Saint-Pierre Common and its occupation for

municipal purposes p. 278

4. The creation of Canadian National Railways (CNR) p. 280

5. The arrival of the Canadian Corporation for the

1967 World Exhibition p. 284

6. From parking lot to airport: the Adacport p. 289

7. A new vocation: the Technoparc p. 292

8. Temporary corrective measures p. 295

9. The future of a site intimately tied to Montreal’s history p. 297

10. Perspectives p. 300

Selected bibliography p. 301

Acknowledgements p. 303

APPENDIX 10 271
List of Figures

Property limits of the Saint-Gabriel farm ca. 1850 p. 274

Location of the Saint-Gabriel Levee p. 277

The arrival of the Canadian National Railways yard p. 282

Extent of the Point St. Charles landfill site in 1951 p. 283

Aerial view of the waterfront, 1958 p. 285

Aerial view of the Victoria Autoparc, 1968 p. 287

One of the Airtransit airplanes p. 290

Vision of future development of the site p. 299

272 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
1. Ville-Marie at the time of the Congregation of Notre-Dame

de Montréal

1659. Marguerite Bourgeoys, founder of the Congregation of

Notre-Dame de Montreal (CND), returned from France with four new

primary school teachers and employed them in her new school located

on Saint-Paul street, a former stable donated by Paul de Chomedey,

sieur de Maisonneuve. Three years later, with the young congregation

having trouble meeting the basic needs of its Saint-Paul street boarders,

Maisonneuve granted Bourgeoys a concession to farm the land located

between the Saint-Pierre fields (also called the common) and the concession belonging to Nicolas Millet, also known as “le Beauceron.”

Nearly ten years later, with the arrival of the first “filles du roi”

[marriageable women of childbearing age brought to the colony at royal

expense], Bourgeoys purchased a house neighboring the concession at

Point St. Charles from Pierre LeBer. The combination of these properties

became what was called the Point St. Charles farm, and as the Congregation’s needs grew it was expanded over the years through additional

purchases or exchanges with neighboring lands, or trough bequests. As

a result, between 1662 and 1731, the CND’s land area increased from

about 30 arpents to over 210 arpents.1

By way of various combinations, we are able to determine approximately the

extent of the estate circa 1723. At that time, on the north side, the Saint-Pierre

river separated the Congregation’s farm from the Saint-Gabriel estate, which

belonged to the Sulpicians. On the east side, starting at the Saint-Pierre common

at a point located in the current extension of LeBer street, the boundary of the farm

went to about Bridge Street. To the west, the boundary followed Hibernia Street,

from Mullins Street to Rushbrooke Street. At the intersection of Hibernia and

Rushbrooke, it merged with the latter and down to about the Champlain Bridge

and on to the river.

According to the titles in the congregational archives, these boundaries remained

much the same from 1723 to 1853.2

APPENDIX 10 273

1. Translator’s note: an arpent is an old French measure of land area equal to about 0.85

of an acre.

2. Emilia Chicoine, C.N.D., translated excerpt from La métairie de Marguerite Bourgeoys à

la Pointe-Saint-Charles, Montreal: Éditions Fides, 1986, pp. 97–98.
Property limits of the Saint-Gabriel farm ca. 1850

From “Étude de potentiel et inventaire archéologique au site de la Ferme Saint-Gabriel

et du parc LeBer”, Ethnoscop, 2004.

274 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
2. Point St. Charles at the dawn of the industrial age

At the beginning of the 19th century, 40 years after the conquest of

New France by England, the population of Montreal reached 9,000 people. The gradual demolition of the Ville-Marie fortifications (today’s Old

Montreal) and the filling in of the rivers and streams surrounding the old

town encouraged the construction of wide streets and fostered travel

between the faubourgs(or suburbs) where nearly two-thirds of the population lived and worked. Under British rule, Montreal’s economy came

to be based on the development of the port, with the emphasis on trade,

both with England and with the interior of the continent, including

Upper Canada. The Lachine Canal, the shipping channel opened in 1824

to bypass the rapids on the St. Lawrence, was widened in 1848. A rail line

was built along the canal to guaranty year-round transportation of

goods between Montreal and Lachine.

The construction of the Lachine Canal significantly changed the

shoreline landscape southwest of Montreal, which, not long before, had

been made up of farmland. Point St. Charles, at the entrance to the canal,

did not escape these changes, especially since the area was also the base

of an expanding railway network. This trend would soon be firmly

established, since Montreal was an island, and there was not yet any

land link between the city and the terminuses of the various railroad

companies located in Kahnawake (Montreal and New-York Railroad),

Laprairie and Saint-Lambert (Champlain and Saint-Lawrence Railroad)

and Longueuil (Saint-Lawrence and Atlantic Railroad).

In 1851, with a number of the railroad companies linking the south

shore to the Maritimes and the United Sates in financial difficulty, some

influential Montreal businessmen (the Ferriers, Molsons and Simpsons)

founded the Grand Trunk Railway System (GTR). They soon absorbed

the troubled railroad companies and, with the financial assistance of

united Canada, they began construction of a rail link between Montreal,

Kingston and Toronto. At the same time, the possibility of building

a bridge between Point St. Charles and the south-shore terminus in

Longueuil began to be discussed.

John Young, who is no longer minister (of public works) but an administrator of

the Port of Montreal, feels it indispensable that the railroad’s terminus be not on

the south shore of Montreal but in Montreal itself. This would necessitate a bridge

over the St. Lawrence, a bridge over which trains could travel. A bridge over two

miles long.3

APPENDIX 10 275

3. Robert Rumilly, translated excerpt from Histoire de Montreal, Vol. II, Montreal:

Éditions Fides, 1970, p. 344.
The GTR needed land to carry out these projects, and the company

began to acquire property in Point St. Charles, both from private landholders and from various religious communities (the Sœurs de

l’Hôtel-Dieu de Montréal and the Sœurs Grises de la Charité). As part of

this acquisition process, the GTR purchased 34 arpents from the Congregation of Notre-Dame de Montréal, bordered to the west by the current

Sébastopol Street, to the north by Wellington Street (formerly called

Chemin de la rivière Saint-Pierre), to the east by a lot already belonging

to the GTR, and to the south by the Point estate. Other successive acquisitions ate away at the Point St. Charles farm, and the GTR property

spread further and further along the shores of the St. Lawrence, at least

until, around the late 1880s, a huge dike was built (the “Saint-Gabriel

Levee”) to protect the south west part of the island against spring

flooding.

In 1856, the GTR opened its huge Point St. Charles shops and three

years later, the Victoria Bridge opened. The bridge was covered and

included a rail line connecting the Point to Saint-Lambert on the South

Shore. At the time, the Point St. Charles farm still existed but, faced

with industrial and urban development, it was becoming smaller and

smaller.

With their imposing rail infrastructure, rolling stock, stations, roundhouses, coal

depots and warehouses, the railroads were then the most visible industry in Canada. Yards like those of the Grand Trunk in Point St. Charles in the heart of Montreal were veritable steam cities spreading out over more than 30 acres and

containing foundries, rolling mills, crushers, and forges where thousands of

boilermakers, machinists, electricians, moulders, modelers, pipe fitters, sheetmetal workers and carpenters worked.4

276 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

4. Donald MacKay, translated excerpt from L’histoire du CN, Montreal: Éditions de

l’Homme, 1992, p. 22. [Translator’s note: the text here is a retranslation into English.

The original English title of the book is The People’s Railway: A History of Canadian

National, Vancouver: Douglas and McIntyre, 1992, 328 p.]
Location of the Saint-Gabriel Levee

Excerpt of map “City of Montreal and Vicinity, October 1890,” by Chas. E. Goad, Civil

Engineer.

APPENDIX 10 277
3. The Saint-Pierre Common and its occupation for municipal

purposes

By the mid-19th century, the population of Montreal had reached

58,000, and this growth posed a number of public health problems for

the municipal administration. The waterworks system had only recently

been taken over by the city, and garbage collection and disposal was

becoming an issue. Both the city’s health committee and the roads commission tabled proposals to, among other things, buy more land for

waste disposal purposes.

And so, on 13 April 1864, the Police Committee (responsible for

health and safety on public roads) obtained from the Waterworks Committee, a property in Point St. Charles for use as a dump. However, less

than two years later, citizens began to complain about odors coming

from the site, which bordered the Point St. Charles Farm, between the

GTR rail lines and Napoleon Road.

On 6 November 1868, the Health Committee recommended that

the city council stop sending garbage to the Point St. Charles site and that

it accept the offer of William Logan to thenceforth send to the Logan

Farm (now Lafontaine Park) the detritus that until then was going to the

farm in Pointe St-Charles.

Garbage collection and disposal remained a significant concern for

the municipal administration, especially given that toward the end of

the 19th century, Montreal was swept with serious cholera epidemics. In

1900, the city council created the “Incineration Commission” along with

an Incineration Department. In early 1902, the Harbour Commission

authorized the city to dump garbage in areas where it wanted to landfill

basins, near Windmill Point (Pointe du-moulin-à-vent), east of the current Technoparc site no. 1.

The President informs the members of the Commission that he has visited the

Windmill Point dump in the company of city councilors Robillard and Lemay,

of Harbour Commissioner Mr. Racine, and of Chief Harbour Inspector Mr.

Guernon, and that they all noted that only ash had been dumped at this site. Four

department employees are permanently stationed at the dump and collect all tin

cans and burn all paper and wood. Organic matter that may be dumped accidentally is collected and sent to the incinerator to be burned.5

278 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

5. Montreal Municipal Archives, [translated] Excerpt of minutes of the Incineration

Commission meeting of 7 March 1902 (Extrait du procès-verbal d’une assemblée de la

Commission de l’incinération tenue le 7 mars 1902), File 9897, 3rd series “Dump:

Saint-Gabriel pier at the south end of Ash street” (Dépotoir; jetée Saint-Gabriel à

l’extrémité sud de la rue Ash).
Despite the city’s proper use of the site, the agreement between the

Harbour Commission and the city did not last long, and two years later,

the Congregation of Notre-Dame de Montréal authorized the city to

dump road sweepings and ashes on the property located between the

north side of Ash avenue and the levee wall free of charge, and on the

north side of Leber street east to the levee wall.

The use of the Saint-Pierre Common as a municipal dump thus

dates back to 1904, aside from the brief period from 1864 to 1868. Which

does not rule out the possibility that between these two periods, citizens

or contractors may have used the site for similar purposes, with or without the authorization of the riparian owners.

From 1904 to 1937, the period during which the area located at the

foot of Ash street was used as a municipal dump, it is difficult to determine the amount of “incombustible” garbage landfilled in Point

St-Charles because the first statistics started in 1917, the year in which a

weighing system was set up at the entrance to the various city dumps. By

way of example, in 1922, the Saint-Pierre Common site received 63,000

tonnes of waste and ashes, that is, 24 percent of all the garbage disposed

of on the territory of Montreal. At that time, these materials were not yet

being dumped onto the riverbed.

APPENDIX 10 279
4. The creation of Canadian National Railways (CNR)

At the end of the 19th century, the Grand Trunk Railway Company

widened the Victoria Bridge to add a second rail line in the middle, and a

lane on either side of the central structure for horse-drawn vehicles and

automobiles and for Montreal Southern and Counties streetcars. As this

work was being done, the Harbour Commission, with the support of

grants from the federal Ministry of Public Works, undertook a significant expansion of the Port of Montreal.

While the port and railroad activities were in full expansion along

the St. Lawrence waterfront, the railroad companies in Western Canada

were in headlong competition with one another and several companies

were unable to meet their obligations. Bowing to public pressure and following a board of inquiry, in June 1919, the federal government created

Canadian National Railways (CNR) and added to it a number of railroad

companies from Western Canada and the Maritimes. That same year,

the CNR, one of Canada’s first commercial crown corporations, was put

in charge of managing the Canadian Merchant Fleet, and three years

later it officially absorbed the assets of the GTR. Company headquarters

remained in Montreal and the Point St. Charles shops expanded their

activities.

In early 1925, the City of Montreal began to survey the lands it

occupied between Ash street, the city waterworks drainage channel, and

the Harbour Commission property. According to correspondence written in English, the Commission agreed to allow the city to landfill garbage on its strip of land as long as only “good materials” were dumped.

Saint-Gabriel district residents and management at the Alexandra Hospital began to complain about odors from the Point St. Charles dump,

and the Congregation of Notre-Dame made a claim for a parcel of land

and islands 2, 3 and 4 appearing on the Port of Montreal boundary map

dated 5 February 1925.

On 14 June 1929, the federal government passed the Canadian

National Montreal Terminals Act (George 5, chapters 19-20). According to

section 2 of this act, the CNR had “the right to acquire or to take [...] lands

and interests in lands for all such purposes, all on the Island of Montreal

in the Province of Quebec, or on the mainland adjacent thereto[.]”

Not only did this act state how the acquisitions or expropriations

could be made, it described the targeted properties, including “connections to existing railway facilities and Harbour Commissioners’ trackage” (paragraph b) and “[c]oach yard facilities at various points, with

280 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
principal yard at Point St. Charles” (paragraph c), as well as “[r]ailway

from a point on the line between St. Henri and Point St. Charles near

Atwater Avenue, along the St. Pierre River and the Aqueduct Tail Race

to the waterfront, and construction of yard facilities on the Waterfront

with connection to existing lines and Harbour Commission trackage”

(paragraph i).

Backed by this legislation, the CNR began negotiating with owners

of waterfront property, including the City of Montreal. By 1931, the city

realized that it would soon reach the capacity of the Point St. Charles

dump site because on the site’s eastern border, the CNR was quickly filling in the area with earth from the construction site of a new downtown

central station on de La Gauchetière street. Six years later, the City of

Montreal and the CNR carried out a large scale land swap.

Whereas the City of Montreal needs to acquire certain properties to proceed with

the opening or widening of Persilliers, Papineau, Charland, de la Montagne,

Guy, Saint Maurice, William, Upper Lachine Road (rue Saint-Jacques), and

Saint-Rémi streets, of which properties said City has already taken possession,

though they belong to Canadian National Railways;

Whereas Canadian National Railways has consented to cede these properties to

the City of Montreal, on the condition that in exchange it cede certain lands

including the Saint Gabriel levee, a portion of the St. Lawrence River waterfront, a

portion of Saint-Jacques street where the current viaduct passes, certain lots

located on Bruchési, Lacordaire, Monsabré, Dickson and Curotte streets, a portion

of Bourgeois street, and a portion of Gravel alley, of which said Canadian National

Railways has already taken position, though it is not the owner; all of which is

described in the draft deed mentioned below;

Whereas [...]

Your committee recommends that this deed of exchange be approved, that His

Honour the Mayor and the City Clerk be authorized to sign it, in the name of the

City; and that the said deed be submitted to the provincial legislature for ratification.6

APPENDIX 10 281

6. Montreal Municipal Archives, [translated from] Report of the Executive Committee to

City Council (Rapport du Comité exécutif au Conseil municipal), 24 March 1937.
The arrival of the Canadian National Railways yard

Excerpt of map prepared for the City of Montreal Planning Department, March 1952.

Between the time of the land exchange between the city and the

CNR and the early 1950s, it is difficult to find reliable information about

the how the St. Lawrence waterfront was used because it was owned in

part by the CNR and in part by another crown corporation created in

1936 to replace the Harbour Commission: the National Harbours Board.

However, it was during this time that the first major encroachment on

the riverbed occurred, to build the major rail yard along the waterfront.

The City of Montreal also backfilled onto the riverbed, but a 1951

map shows that it was fairly limited in scope (see figure on next page).

From 1955 to 1965, according to various sources, the entire area

between the Victoria and Champlain bridges was used as a dump site.

The western portion was used by a private garbage collection company,

while the eastern portion was operated by the city. The border between

these two areas is not known, however. The disposal of used oil, paint,

etc. occurred in a limited fashion. The waste disposed of by the city was

about 40 percent garbage and 60 percent earth and construction waste.

In 1956, the National Harbours Board banned the city’s disposal of

putrescible wastes on its property. In 1960, a call for tenders for the disposal of the city’s incombustible waste and incinerator residues stipulated that they be taken to certain dump sites, including the one at Point

St. Charles.

282 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
Extent of the Point St. Charles landfill site in 1951

Excerpt from a City of Montreal brief on waste incineration, 13 December 1951.

APPENDIX 10 283
5. The arrival of the Canadian Corporation for the 1967 World

Exhibition

In the summer of 1958, at the Brussels World Exhibition, the

Speaker of the Canadian Senate declared that an exhibition of a similar

scale should be held in Canada to celebrate the centenary of Confederation, and furthermore that it should be held in Montreal to also commemorate the 325th anniversary of the founding of Ville-Marie.

The idea was the object of lively discussions throughout the country, but two years later, the Government of Canada submitted Montreal’s candidature to the International Exhibitions Bureau (IEB) for

Expo ’67. Surprisingly, the IEB awarded the 1967 World Exhibition to

Moscow to celebrate the 50th anniversary of the Russian Revolution.

However, in April 1962, the USSR withdrew its candidacy, and on

November 13, after studying a number of proposals, Canada and Montreal were chosen to replace the Soviet Union and Moscow.

Barely a month later, the federal government passed the Act to Create the Canadian Corporation for the 1967 World Exhibition (the Corporation) and injected it with $20 million. Under an agreement signed in

1960, when Montreal’s candidacy was initially submitted, the provincial

government contributed a further $15 million and the City of Montreal,

$5 million. This three-way agreement served as the basis for sharing

future costs of Expo 67 (50 percent from the federal government, 37.5

percent from the province, and 12.5 percent from the city).

Time to produce the event was short–less than four years. Under

the act that created the Corporation, the City of Montreal was to deliver

to the Corporation, at its own expense and before 30 June 1964, a piece of

land free of buildings on the Island of Montreal. At the end of March

1963, after rejecting proposals to hold the Expo on various sites, including the Saint-Sulpice lands north of the Metropolitan Boulevard,

Maisonneuve Park, and Point St. Charles and the area called Goosetown

or Victoriatown, the city announced the chosen location: the islands

of Ronde, Sainte-Hélène and Notre-Dame, which would have to be

expanded, and the MacKay Pier, which, once filled in, would be

renamed Cité du Havre.

284 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
Aerial view of the waterfront, 1958

With the site chosen, the Corporation not only had to deal with

developing it but also had to solve the significant problem of visitor

access to the islands. The City of Montreal agreed to extend the metro

line to the South Shore, with a stop on Ile Sainte-Hélène. On the South

Shore, near the exit of the Longueuil metro station, the Corporation built

a parking lot with a gross area of 4 million square feet, able to accommodate nearly 8,300 automobiles.

On the Montreal side, in extending the Mackay pier to create the

Cité du Havre, the federal government agreed, with the support of the

National Harbours Board, to fill in the river, starting at the CNR property, to a sufficient elevation to build a 5.5 million-square-foot parking

lot. It also agreed to build a highway linking the new Champlain Bridge

to downtown Montreal. Built between 1965 and 1967, at the same time as

the Victoria Autoparc, the Bonaventure Autoroute was subject to a

number of agreements between the City of Montreal and the National

Harbours Board, which acted as the federal government’s agent and

oversaw the project, as the following excerpt illustrates.

In view of communications with the National Harbours Board [...] related to the

construction of a limited access route linking the Champlain Bridge with University Street, it is

RESOLVED to approve the following terms of the agreement between the

National Harbours Board and the City of Montreal concerning the construction of

APPENDIX 10 285
the “Road” linking University Street to the reception area for the 1967

World Exhibition site and thenceforth on to the Champlain Bridge:

1. The Road will be built according to the drawings and specifications of project

no. 11-A [...]

2. [...]

3. The cost of the work to build the Road will be assumed in its entirety by

the City for the portion between the centre of the Lachine Canal up to

Notre-Dame Street, and by the Board for the portion between the said centre

of the Lachine Canal up to the Champlain Bridge.

4. The expropriations required for the construction of the Road, from the Champlain Bridge up to Notre Dame Street will by carried out and closed by the

City, and the properties so expropriated, located between the Champlain

Bridge and the Lachine Canal, will be ceded to the Board, without cost. The

National Harbours Board will for its part, and at no cost to the City, obtain

all necessary titles and easements for properties belonging to the federal government or to crown corporations, between the Champlain Bridge and the

centre of the Lachine Canal.

5. [...]

6. General maintenance costs, including maintenance of the structure and

the lighting system, repaving, snow removal and street cleaning, shall be

assumed by the two parties for the sections of the Road which they own.7

286 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

7. Montreal Municipal Archives, [translated] Excerpts of minutes of the City of Montreal

Executive Committee meeting of 20 May 1965 (Extrait du procès-verbal d’une séance du

comité exécutif de la Ville de Montréal tenue le 21 mai 1965), #3030.
Aerial view of the Victoria Autoparc, 1968

The construction of the Victoria Autoparc, between the Bonaventure Autoroute to the south and CNR property to the north, was also

subject to cost sharing. The backfilling costs thus fell to the federal government (likely the National Harbours Board) and the building costs

were assumed by the Corporation ( $2,231,555).

According to the general report of the Canadian Corporation for

the 1967 World Exhibition, published in 1969, the Victoria Autoparc

comprised 12,500 parking spaces for cars and 500 for busses, two tollbooths, two information kiosks, service buildings and a gasoline station

(FINA) located near the Victoria Bridge. Next to the gas station, a water

treatment plant for the Cité du Havre was built where “soil conditions

were very poor.” In total, the Victoria Autoparc comprised 6,000 feet

between the Champlain and Victoria bridges, with an average width of

1,100 feet, and retaining walls completing the sector were 7,800 feet long.

Maintenance of the two large parking lots (Longueuil and the Victoria Autoparc)

posed further difficulties; graders went over unpaved roads almost every night;

APPENDIX 10 287
given the nature of the fill material, dust-control measures were required on a

permanent basis [...]

Dust-control measures were carried out before and after Expo opened using special equipment. Before Expo opened, most of the roads had not been paved and oil

was sprayed on them. During Expo, LOGNOSOL was used, this product being

harmless to automobiles.8

Built for the sole purpose of the 1967 World Exposition, the Victoria Autoparc also acted as a sponge for the industrial areas north of the

site, particularly those of Canadian National. From that point forward,

all flows of chemicals, toxic or otherwise, were diverted from the river to

accumulate below this huge, partly landscaped parking lot. In 1968,

when it came time for the retrocession by the Corporation of the main

Expo sites used for Man and His World (the islands of Ronde,

Sainte-Hélène and Notre-Dame) to the City of Montreal, the Victoria

Autoparc was excluded from the assignment, and following the dissolution of the Corporation under the Expo Winding-up Act, the parking lot

fell under the jurisdiction of the National Harbours Board.

288 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

8. Canadian Corporation for the World Exposition of 1967, translated excerpt from Rapport général sur l’exposition universelle de 1967, Vol III, 1969, pp. 1508–1509. [translator’s

note: though the text here is a translation, this report does exist in an official English

version entitled General Report on the 1967 World Exhibition.]
6. From parking lot to airport: the Adacport

In the early 1970s, in an attempt to boost the troubled Canadian

aeronautics industry (one need only think of the Canadair plant in Ville

Saint-Laurent or the De Havilland facility in Toronto), the federal government proposed setting up a project to link the downtown cores of

Ottawa and Montreal using short take-off and landing aircraft (STOL, or

ADAC in French).

The choice of aircraft was the topic of vigorous discussions among

Montreal and Toronto firms, but the federal Department of Transport

quickly announced the selection of six Twin Otter DHC-6, manufactured by De Havilland. In the wake of this announcement, in the spring

of 1971, the minister also announced that an airport able to accommodate this type of aircraft would probably be built on the site of the Victoria Autoparc, unused since 1967, with flights beginning as early as

September 1972.

This breath of optimism led Montreal City Council to amend its

zoning regulations for the affected areas (Regulation 4444) so that the

industrial area would be rezoned as class III. However, while the Victoria Autoparc was the only available site near downtown Montreal that

could accommodate such a project, its development was regularly called

into question, especially because its soil was said to be too soft, and

because of the gas emissions escaping from the subsurface. In the summer of 1973, the federal Department of Transport granted a $1.6 million

contract to convert the site into an airport.

Initially planned to begin on April 1, postponed to the 15th and then to the beginning of May, the STOL air service between Montreal and Ottawa will not start

until late May or early June because of technical problems related to the type of

land on which the Montreal airport is built.

The tarmac (the parking and boarding areas) has sunk four to six inches into the

ground, which is composed essentially of 10 feet of garbage, dumped there to build

the Victoria Autoparc, and which is now being converted into an airport.

The runway is cracked in two places, and an inspector who tossed a piece of tissue

to which he had lit a match was surprised to see the runway catch fire at his feet due

to the methane emissions, caused by the decomposition of organic matter. Finally,

the stacks that were supposed to automatically burn the methane from the site are

working much harder than planned because the site is emitting more gas than

engineers had estimated. [...]9

APPENDIX 10 289

9. René-François Desamore, “Adacport opening delayed yet again” (L’ouverture de

l’Adacport de nouveau retardé), La Presse, 26 March 1974.
With site preparation finally finished, the federal Department of

Transport entrusted management of the Adacport to Air Canada, which

created the subsidiary AirTransit for this purpose. The first flight took

off in the summer of 1974, but after two years of operation and a great

deal of financial difficulty, the Adacport project was abandoned.

One of the Airtransit airplanes

Source: http://aviation.technomuses.ca

In 1977, Canada’s two large railway companies, Canadian Pacific

(CP) and Canadian National (CN) were having great financial difficulties with their passenger services and, after the fashion of the U.S.

government and its creation of AMTRAK, the Canadian government

created a new Crown corporation, VIA Rail Canada.

VIA Rail, which reported to the federal Department of Transport,

had its headquarters in Montreal and operated a maintenance site in

Ville Saint-Pierre, near the Lachine Canal along the edge of Autoroute

20. Nearly five years after its creation, Via Rail announced investments

of over 300 million dollars to build five maintenance facilities in Canada,

including one costing approximately $140 million to be built on the CN

property in Point St. Charles. The new Montreal Maintenance Centre (or,

as VIA Rail Canada calls it, MMC) was inaugurated on 25 September

1987. VIA also signed an agreement with CN (whose operations were

declining) that engaged over 500 CN employees in maintaining VIA’s

rail cars.

In August 1984, ten years after the opening of the airport on the St.

Lawrence waterfront, Environment Canada’s Environmental Protection

290 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
Service made public a study of 48 hazardous waste landfill sites located

on federal properties in Québec, including the Adacport site.

The methane gas generated by waste from the former Montreal dump, subsequently buried on the Adacport site in downtown Montreal, can move considerable distances and eventually pose an explosion risk. This is one of the conclusions

of a report produced by Foratek International Inc. at the request of the federal

Environmental Protection Service and made public yesterday [...]

These gasses, continue the authors, can move appreciable distances around the site

and accumulate in certain areas, thus presenting a long-term impact independent

of the level of activity at the site. They could also migrate through all types of conduits (sewer pipes or electrical and telephone conduits), accumulate in enclosed

spaces and thus eventually pose risks of explosions on neighboring sites. Moreover, the packing of the site caused by compaction of the garbage will affect current

and future development on the site, such as roads and buildings, whose design and

maintenance will clearly be affected.10

Faced with this state of affairs, well-intentioned Montreal citizens

called on the city administration to acquire the site to exploit its buried

methane gas reserves. The president of the executive committee calmed

public fears about the dangers of the site and added that based on studies carried out for the City of Montreal, it seemed that the methane

reserves on the site were far less abundant than those on the site of the

old Miron Quarry, and that if any site should be exploited for its methane, it should be that one.

It is currently not possible to build on the Victoria Autoparc site. However, Mr.

Lamarre could see a park along the waterfront, a greenspace corridor along the

river and the Bonaventure Autoroute, which could be moved closer to the

Autoparc [...].

Furthermore, a thorough hydrogeological study of the former Point St. Charles

dump will be carried out to verify the impermeability of the “Butler line,” which

forms a natural barrier between the Canadian National switching yard and the

Adacport site and which is composed of waste of various types; this study has been

commissioned by Environment Canada.11

APPENDIX 10 291

10. Louis-Gilles Francœur, “Dangers of explosion at the Adacport?” (Des dangers

d’explosion à l’Adacport ?) Le Devoir, 30 August 1984.

11. Elyse Avon, “Gasses under the Adacport pose no threat to the population: Yvon

Lamarre” (Les gaz enfouis de l’Adacport, aucun danger pour la population–Yvon

Lamarre) La Voix Populaire, 14 May 1985.
7. A new vocation: the Technoparc

In November 1989, the Committee for Economic Recovery and

Revitalization of Employment in Southwest Montreal (Comité pour

la relance de l’économie et de l’emploi du SUD-OUEST de Montreal–

CREESOM), made pubic a report on community organization fpr development in the area (“Sud-Ouest, organiser notre développement ensemble”) that described the district’s socio-economic decline and offered

solutions toward an action plan.

Less than four months later, in response to the report, the Montreal

Economic Initiative and Development Commission (Commission d’initiative et de développement économiques de Montréal–CIDEM) announced

an action plan for the economic recovery of Southwest Montréal

(“Plan d’action de la Ville de Montréal pour la relance économique du

sud-ouest”). This plan included projected expenditures of $223 million

over five years for revitalizing the area, in particular to renovate former

industrial zones, to develop an industrial and commercial business complex, to boost the industrial renewal assistance program, to revitalize

areas along the Lachine Canal, and to improve road infrastructure.

The action plan did not refer specifically to the Victoria Autoparc,

and for good reason. In early 1988, the City of Montreal Executive Committee and the Québec provincial cabinet had reached an agreement in

principle for the City, under various conditions, to acquire the former

Acacport site in order to develop a high-tech research complex, which

was in keeping with the Montreal Urban Community’s development

plan for the site.

In fact, the initiative for this process can be traced back to Teleglobe

Canada, which, needing space for its operations, included a portion of

the Adacport site among its development options. Teleglobe undertook

a number of feasibility studies with the City of Montreal, the “Société des

ports nationaux”12 and the Québec environment ministry, which had

long claimed ownership of the site since the hydric nature of its origins

should legally give the ministry all rights to it.

To resolve the dilemma, the following agreement, valid only for the Adacport site,

was signed between the two levels of government. The Government of Canada and

the Government of Québec each agreed to cede to the City of Montreal, by way of

notarial act, all rights and claims that they had or may have on the totality of the

292 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

12. Translator’s note: it is unclear what organization, presumably federal, is being

referred to here since as far as I can tell, no organization with this name has ever

existed.
properties in question. In this way, the City of Montreal can take over ownership

of the properties in question and the two upper levels of government agree that no

prejudice is caused to their rights to other similar properties in the future.13

At the session of 30 March 1989, City Council adopted two draft

deeds though which the City of Montreal acquired the same property

from two different owners–the former Victoria Autoparc site (only a

portion of which was used for the Adacport)–and under different terms.

THE EXECUTIVE COMMITTEE submits

1. A draft deed by which the Montreal Port Corporation sells, assigns and conveys, without security, all rights, titles, claims and interests it holds in a

property located in Montreal, it being a deep-water lot, composed of block no.

2 of the municipal assessment roll of the parish of Montreal, and block no. 5 of

the City of Montreal municipal assessment (Sainte-Anne ward), all of which

is as shown on map R10072, this sale being made for the nominal sum of

$1.00 and all good and valuable considerations.

2. A draft deed by which Her Majesty in right of Quebec sells to the City, without security, all rights, titles, claims and interests she holds and may hold in a

property located in Montreal, it being a deep-water lot, composed of block no.

2 of the municipal assessment roll of the parish of Montreal, and block no. 5 of

the City of Montreal municipal assessment (Sainte-Anne ward), all of which

is as shown on map R10072, this sale being made for the sum of $1,000,000.

On the basis of the report of the head of the Corporate Affairs Department, the

Executive Committee recommends

a) that these draft deeds be approved and that the executive director or City

clerk be authorized to sign them in the name of the City;

b) granting an appropriation to this end of $1,030,000 including financial

costs and to allocate these credits from the loan authorized by municipal

by-law 8082.14

In the first case, and for the nominal sum of $1 and “all good and

valuable considerations,” the City of Montreal, pursuant to article 1

related to the conditions of the deed of sale, accepts the property as is

and “frees Her Majesty in right of Canada, along with her representaAPPENDIX 10 293

13. Montreal Municipal Archives, CIDEM, “Notes to Council,” [translation] 15 March

1989, File no. 89 –0030936.

14. Montreal Municipal Archives, translation of “Certified excerpt from minutes of City

Council Assembly session of 31 March 1989,” (Extrait authentique du procès-verbal

de l’assemblée du Conseil municipal, séance tenue le 31 mars 1989), Resolution no.

CO89 01189.
tives and agents, and in particular the Montreal Port Corporation and its

representatives and employees, from all liability related to the title of

ownership and to the state of the property’s soil and subsurface, and it

will wholly relieve them from all claims, requests, actions, procedures,

losses, fines or expenses, or any damage resulting from defects in titles

or stemming from the state of the soil or subsurface of the property.”15

In the second case, and for the sum of $1,000,000, similar conditions

appear in the deed of sale, with the exception that in addition, the City is

required to carry out, or have carried out, an assessment of the hazardous substances that may be found in the soil or subsurface of the site,

with the cost of the study, up to $300,000, being deducted from the sale

price.

In December 1989, the Montreal-Lanaudière regional office of the

Québec ministry of environment authorized the City of Montreal to

build sanitary and storm sewers, along with waterworks lines, beneath

the southern portion of what is now known as the Montreal Research

and High Technology Centre (Parc de recherche et de haute technologie

de Montréal). Work on the infrastructure had only just begun when,

in August 1990, the first seepages of hydrocarbons were observed

upstream from the Victoria Bridge.

294 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

15. Translated from the French. No official source given in the original French text.
8. Temporary corrective measures

In 1991, Canadian National, through its affiliate AMF techno transport inc., which ran the Point St. Charles shops, put temporary hydrocarbon capture measures into place. Beginning in the autumn of that year,

the costs of these measures, along with studies to find a permanent solution, were shared equally by CN and the City of Montreal, until such

time as CN installed its own recovery system and withdrew its participation in September 1997. CN’s system, installed on CN property near

the limits of the City’s property, comprises 122 collection wells for floating hydrocarbons but has no effect on groundwater; by the spring of

2000, the system had intercepted 600,000 liters of oil. In parallel with

these efforts, between 1992 and 1995, CN dismantled two large

above-ground storage tanks dating from 1957 and located near the

boundary of the City’s property.

Around the same period, in an effort to improve the quality of surface materials, drainage and topography, the City of Montreal backfilled

the central and eastern portions of the site with 540,000 cubic meters of

clean soil. Since CN’s withdrawal from the partnership with the City, the

City has, by itself, conducted studies to find a permanent solution and

taken temporary measures along the waterfront using booms near the

Victoria Bridge.

In May of 1999, faced with the complexity of the problem, the environmental impacts related to seepage and future projects, the numerous

possible interception and recovery scenarios, and legal and economic

issues, the City of Montreal decided to undertake a value analysis. The

City formed a multidisciplinary team of ten people to define the City’s

needs and obligations and then choose the optimum scenario and identify subsequent steps. The scenario chosen by the team was the construction of a watertight wall with passive recovery optimized along its entire

length, which would extend 1.1 km along a municipal easement located

on the southern limit of the former Adacport. This scenario included the

use of floating booms along the edge of the river for a certain number of

years.

The preparatory studies required to put the wall into place were

entrusted to SNC-Lavalin Environment Inc. (SLEI) and comprised two

separate reports (March and April 2002). The system proposed in the

pre-project study consisted of an un-anchored interception wall on the

limits of the City’s property, north of Carrie-Derick Street. This wall,

whose length was extended to 1.6 km after subsequent characterization

studies, lets groundwater flow along its base, while wells to skim off

APPENDIX 10 295
floating oils are located upstream from the wall. Recovery operations

along the waterfront were planned to continue for a certain period. The

volume of floating phase hydrocarbons on the City’s site was estimated

at 3,800,000 liters upstream from the projected wall, and 270,000 liters

between the wall and the river, below the Bonaventure Autoroute. The

cost of the project was estimated at the time to be between 8 and 9.8

million dollars.

In February 2002, SLEI was given the job of drawing up plans and

estimates for the hydrocarbon recovery and collection system, leading to

a call for tenders for the system’s implementation in 2002. However in

May 2002, at the request of Environment Canada and the Québec environment ministry, the design work was temporarily halted in order to

carry out characterization studies of the toxicity of the groundwater and,

in light of the results, to reassess the planned work.

The hydrocarbon collection and recovery project was thus modified to include the interception of groundwater. In April 2004, SLEI, submitted plans and estimates for the new system, with construction costs

now reaching $20.3 million.

296 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
9. The future of a site intimately tied to Montreal’s history

In the spring of 1993, independent of the measures adopted to

recover hydrocarbons seeping from the CN property, Montreal city

council amended the zoning by-law for the wards of Sainte-Cunégonde,

Saint-Henri, Saint-Paul, Sainte-Anne, Saint-Gabriel and Saint-Joseph

(by-law no. 9373) to authorize the new activities of the Montreal campus

of the Montreal metropolitan technoparc. Among the activities authorized were research centers and laboratories and their associated production units, as well as business administration centers, technical

centers, and teaching facilities in the fields of aerospace, biotechnology,

electronics, consulting engineering, materials engineering, computer

science, scientific instruments, pharmaceutics, optics, and telecommunications. During the early years, only two telecommunications companies set up shop: Teleglobe Canada and Bell Mobility. It was only years

later that Mel’s, a large soundstage complex, was built on what was formerly the Adacport and before that the Victoria Autoparc and the

Saint-Pierre Common.

From 1662, the estate of the Congregation of Notre-Dame in Point St. Charles

gradually expanded from the original 30 arpents granted by Maisonneuve to 212

arpents in 1731. It was first isolated from the city then invaded by it. On the south

side, the jetee blocked access to the river and obstructed the horizon; the immense

landscaping works for Expo ’67 absorbed the Common, where farm animals

grazed, and the two small islands familiarly called île Chevaux and île Savate. To

the north and west, an arm of the Saint-Pierre River and Saint-Gabriel Brook gave

way to streets and the Canadian National railroad, while to the east, a considerable

portion was occupied by CN services. Over time, factories, public buildings, commercial establishments and residences slowly relegated the agricultural vocation

of this corner of the Island of Montreal to a distant memory.16

On 27 April 2004, the Secretariat of the Commission for Environmental Cooperation (CEC), an international organization created by

Canada, the United States and Mexico under the North American

Agreement on Environmental Cooperation (NAAEC), recommended to

the CEC’s Council to develop a factual record concerning the Montreal

Technoparc submission (SEM-03-005).

This recommendation followed up on requests submitted to the

Secretariat less than a year earlier by five non-governmental environmental organizations, including the Société pour vaincre la pollution

(SVP), and challenged Environment Canada to ensure the enforcement

APPENDIX 10 297

16. Chicoine, p. 122.
of the Fisheries Act, especially with respect to the release of toxic substances into the St. Lawrence from the Montreal Technoparc site.

Following a request by some of the Submitters in April 2002, Environment Canada conducted an investigation for violation of s. 36(3) of the Fisheries Act.

According to Canada, the investigation succeeded in gathering all the evidence

required to establish an offense, except the identity of the person or persons responsible for the deposits. As a result, the Ministry decided to end its investigation.

In 2002, the City proposed installing a system aimed at stopping substances present in a suspended phase from draining into the Saint Lawrence River. Canada

states that Environment Canada expressed concerns about the capacity of such a

system to contain substances present in a dissolved phase. In the response, Canada

states that Environment Canada is in talks with the province of Quebec and the

City of Montreal to find a comprehensive solution to the problem.17

A week after the CEC’s press release, the ministers of Industry and

Economic Development Canada announced that the Government of

Canada was renewing its support for the Montreal Harbourfront Corporation (Société du Havre de Montreal), an organization created in the wake

of the Montreal Summit (Sommet de Montreal) of 2002 with the goal of

providing the Montreal administration with a development plan for the

area consisting broadly of the lands between the Jacques Cartier and

Champlain bridges and between Saint-Antoine Street to the north and

the St. Lawrence River to the south.

This ministerial announcement was made on the day the Harbourfront Corporation, after over a year of intense work, unveiled its action

plan, entitled Montreal Harbourfront VISION 2025. In this development

plan, the Corporation suggests, among other things, that the Bonaventure Autoroute–owned by Transport Canada and operated by The

Jacques Cartier and Champlain Bridges Incorporated–be reconfigured

to allow safe access to the St. Lawrence waterfront for all Montrealers.

The Corporation’s plan also contemplates expanding the Technoparc’s vocation, though it is aware of the soil contamination problems at

the site, and above all bears in mind the development potential represented by the unused Canadian National properties. It also suggests that

any future development plan for the huge industrial sites created over

one hundred fifty years ago by the Grand Trunk Railway include a

buffer zone in the form of a linear park between the VIA Rail shops and

those owned by CN.

298 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

17. North American Commission for Environmental Cooperation, “Secretariat recommends factual record for Montreal Technoparc submission,” press release issued 27

April 2004.
Vision of future development of the site

Christian Thiffault, Architects for the Montreal Harbourfront Corporation.

APPENDIX 10 299
10. Perspectives

Because it serves as a buffer zone between the CN property and the

St. Lawrence, the site of the former Victoria Autoparc is the cause of negative environmental impacts on the river, and remedial measures must

be put into place. As the site’s new owner, the City of Montreal assumes

a certain portion of the responsibility, and since the first appearance of

hydrocarbon seepage into the river upstream from the Victoria Bridge,

the City has continued recovery operations along the waterfront–jointly

with CN at first, and then alone after the former Crown corporation

withdrew in 1997. In parallel with this process, the city administration

has hired various consultants in order to put in place a permanent solution. To date, the City of Montreal has invested over $2 million toward

solving the negative environmental impacts in this area.

In the spring of 2004, the Government of Canada announced

investments of $3.5 billion over 10 years to decontaminate federal sites,

along with an additional $500 million to promote the clean-up of sites for

which it shares responsibility, such as the Sydney tar ponds in Nova Scotia. For the good of the Montreal community, it is up to the federal government to recognize that the numerous Crown corporations it created

over a period of nearly 150 years and that occupied the shores of the St.

Lawrence have greatly contributed to the current state of the Technoparc

site, and that given this historical context, it is completely justifiable that

a portion of these additional funds go toward rehabilitating these lands.

At a time when more than one project to develop the former Victoria Autoparc site and the CN lands are under discussion, the search for

and implementation of a permanent solution to the environmental problem at this site is vital, and the cost should be borne by both current and

former owners.

300 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
Selected bibliography

Historical Documents:

Chicoine, Emilia, CND. 1986. La métairie de Marguerite Bourgeoys à la

Pointe-Saint-Charles. Montréal: Éditions Fides.

Linteau, Paul-André. 1992. Histoire de Montreal depuis la Confédération.

Montréal: Éditions du Boréal.

MacKay, Donald. 1992. L’histoire du CN. Montréal: Éditions de

l’Homme.

Pinard, Guy. 1989. Montréal – Son histoire – Son architecture. Tome 3, Montreal: Éditions La Presse.

Robert, Jean-Claude. 1994. Atlas historique de Montréal. Montreal:

Éditions Art Global / Libre Expression.

Rumilly, Robert. 1970. Histoire de Montréal. Tome 2. Montréal: Éditions

Fides.

Montreal Municipal Archives (maps, monographs, etc.)

Technical Documents:

ADS associés ltée. November 1988. Caractérisation du site et des environs de

l’Adacport -Rapport de caractérisation final.

ADS Groupe-Conseil inc. October 1992. Évaluation de la migration des

hydrocarbures en phase flottante hors de la propriété du CN à Pointe

St-Charles.

ADS Groupe-Conseil inc. December 1992. Caractérisation des espaces

publics du Technoparc – Ancien site de l’Adacport.

ADS Groupe-Conseil inc. June 1994. Relevé des berges du fleuve

Saint-Laurent à Pointe-Saint-Charles, Rapport final.

Aménatech inc. 1985. Études supplémentaires de six sites de disposition de

déchets solides sur les terres fédérales au Québec.

Comité pour la relance de l’économie et de l’emploi du SUD-OUEST de

Montréal (CREESOM). November 1989. Sud-Ouest: organiser notre

développement ensemble – Résumé du rapport final. Montréal.

La Compagnie canadienne de l’Exposition universelle de 1967. 1969.

Rapport Général sur l’Exposition universelle de 1967, Tome III.

Les Conseillers Beak Ltée. January 1979. Étude de génie de l’environnement

– Site de l’Adacport – Autoparc Victoria.

APPENDIX 10 301
Dessau inc. September 1997. Technoparc Montréal métropolitain – Campus

de Montréal – Contrôle environnemental des travaux de remblayage.

Envir-Eau inc. September 1992. Les Chemins de fer nationaux du Canada

(CN) – Antenne Butler – Pointe-Saint-Charles – Étude de caractérisation.

Foratek International Inc. March 1984. Etude des sites de disposition de

déchets solides sur les terres fédérales au Québec – Rapport final Phase II.

Foratek International Inc. March 1985. Étude de gaz – Site de l’Adacport.

Golder Associés Ltée. August 1996. Canadien national – Antenne Butler –

Système d’interception d’hydrocarbures – Plans de construction.

Miri Valorex inc. June 1999. Technoparc – Écoulement d’hydrocarbures au

fleuve St-Laurent -Rapport d’analyse de la valeur.

SNC-Lavalin Environnement inc. March 2002. Caractérisation environnementale complémentaire (volets 1. 2 et 3). Projet d’interception et

de récupération des phases flottantes d’hydrocarbures, Technoparc.

Montréal.

SNC-Lavalin Environnement inc. April 2002. Étude d’avant-projet d’interception et de récuperation des phases flottantes d’hydrocarbures au site du

Technoparc, Montréal.

Société du havre de Montreal. 2004. Le havre de Montréal: Vision 2025. La

ville et son fleuve/Une proposition pour l’avenir, Montréal.

Ville de Montréal, CIDEM. March 1990. Plan d’action de la Ville de

Montréal pour la relance économique du sud-ouest. Montréal.

Ville de Montréal, Service des travaux publics. 13 December 1951.

Mémoire exposant le problème de l’élimination des déchets.

302 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
Acknowledgements

This document was made possible though the collaboration of the following people:

Section engineer, Laboratory division, Department of Infrastructure,

Transportation and Environment (Service des infrastructures, transport et environnement–SITE)

Division Head, Laboratory Division, SITE

Geomatics Technician, Geometrics Division, SITE

Assistant to the Associate General Director, SITE

Graphic Designer, Communications Division, Administrative Services

Department

Desk officer, Document Management Division, Registry Division, Corporate Affairs Department

Division Head, Geomatics Division, SITE

Engineer, Laboratory division, SITE

APPENDIX 10 303

APPENDIX 11

Guy Martin’s résumé

Guy Martin

EDUCATION

Université de Montréal, HÉC 1994

Management course, certificate Montreal, Québec

Université du Québec à Montréal 1976

Environmental geology course, certificate Montreal, Québec

CEGEP Saint-Laurent 1970–1972

Post-junior college course – Industrial chemistry Ville St-Laurent,

and pollution Québec

– Instrumental chemistry

– Hydraulics and flow

measurement

Institut de Technologie de Vaudreuil, 1966–1969

Technical water treatment course, Vaudreuil, Québec

junior college degree

Montreal Catholic School Board, Saint-Émile

Secondary School 1962–1966

High school diploma Montreal, Québec

WORK EXPERIENCE

APPENDIX 11 307

– Citizenship: Canadian

– Working languages:

French and English

– Security classification:

Level II, secret

Environment Canada

File number:

– Retired in January 2004 from Environment Canada; held position of Chief,

Inspections and Investigations

Division, Environmental Enforcement

Branch, Environment Canada Headquarters

– Designated officer of the peace and

fisheries officer for purposes of

enforcement of the Canadian Environmental Protection Act, 1999 and

the Fisheries Act, respectively.

January 2004

to the present

 Retired 16 January 2004, from Environment Canada.

 Temporarily employed as training specialist for a legal

sampling course given to Environment Canada officers.
308 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION

1996 to

January 2004

Chief, Inspections and Investigations Division

Environmental Enforcement Branch

Environment Canada, Environment Canada Headquarters,

Gatineau, Québec

 Coordinated regional law enforcement support; provided

information and managed regional law enforcement activities,

advised persons in charge of real and potential controversial

issues; acted as liaison with other departments, agencies, and

domestic and international organizations (Commission for

Environmental Cooperation/NAFTA, INTERPOL, USEPA, US

Customs, US Justice, etc.)

1995–1996 Special Law Enforcement Adviser

Environmental Enforcement Branch

Environment Canada, Environment Canada Headquarters,

Hull, Québec

Advised the director and the assistant director on law enforcement; provided support to the regions, and acted as liaison with

other departments, agencies, and domestic and international

organizations.

1993–1995 Chief, Inspections and Investigations Division

Environmental Protection Branch

Environment Canada, Quebec Region, Montreal, Québec

 Directed regional inspection and investigation activities and

developed law enforcement tools and procedures.

 Directed major investigations and prosecuted offenders;

e.g.: Tioxide Canada Limited. Fine: $4 million.

1988–1993 Chief, Investigations Division

Environmental Protection Branch

Environment Canada, Quebec Region, Montreal, Québec

 Directed investigation activities; conducted major investigations and developed investigation tools and procedures.

1983–1988 Senior Technologist, Environmental Emergency Operations

Environmental Protection Branch

Environment Canada, Quebec Region, Montreal, Québec

 Delivered emergency response, developed environmental

emergency response tools and procedures, maintained standby

state.

1974–1988 Duty Officer, Emergency Operations (Shift Officer)

Environmental Protection Branch

Environment Canada, Quebec Region, Montreal, Québec

 Part-time emergency response.
APPENDIX 11 309

1973–1983 Senior Technologist, Federal Enterprises Division

Environmental Protection Branch

Environment Canada, Quebec Region, Montreal, Québec

 Developed and directed a “Monitoring and Inspection” program for facilities treating federal waters; directed an effluent

sampling team (industrial, municipal, governmental).

 Responsible for quality control of potable water production

and distribution and for wastewater treatment effluent quality

for the Western Québec region. Conducted systematic sampling, recommended corrective measures, and informed the

agency’s management and the municipalities of any risks.

1970–1971 Shift supervisor, wastewater treatment plant school

Ministère de l’Éducation du Québec

Cité des Jeunes de Vaudreuil, Vaudreuil, Québec

 Responsible for production and quality control of potable

water for distribution to the Cité des Jeunes de Vaudreuil (youth

complex) and the City of Vaudreuil, Québec

1969–1970 Shift supervisor, Wastewater Treatment Plants

Water Treatment Department

City of Montreal, Québec

 Responsible for the mechanical operation and the quality control of wastewater treatment processes at plants under the control of the City of Montreal.

ATTACHMENT 1

Council Resolution 08-04

23 June 2008

COUNCIL RESOLUTION 08-04

Instruction to the Secretariat of the Commission for

Environmental Cooperation to make public the Factual

Record for Submission SEM-03-005 (Montreal Technoparc)

THE COUNCIL:

SUPPORTIVE of the process provided for in Articles 14 and 15 of

the North American Agreement on Environmental Cooperation (NAAEC)

regarding submissions on enforcement matters and the preparation of

factual records;

HAVING RECEIVED the final factual record for Submission

SEM-03-005; and

NOTING that pursuant to Article 15(7) of the NAAEC, the Council

is called upon to decide whether to make the factual record publicly

available;

HEREBY DECIDES:

TO MAKE PUBLIC and post on the registry the final factual record

for Submission SEM-03-005;

TO ATTACH to the final factual record comments provided by

Canada to the Secretariat on the draft factual record; and

TO INCLUDE with the final factual record a disclaimer which states that the document was prepared by the Secretariat, and that the

views contained therein do not necessarily reflect the views of the

governments of Canada, Mexico or the United States of America.

ATTACHMENT 1 313
APPROVED ON BEHALF OF THE COUNCIL:

____________________________________

David McGovern

Government of Canada

____________________________________

Enrique Lendo Fuentes

Government of the United Mexican States

____________________________________

Scott Fulton

Government of the United States of America

314 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
ATTACHMENT 2

Comments of Canada

Gatineau QC K1A 0H3

January 22, 2008

Mr. Adrián Vázquez, Executive Director

Commission for Environmental Cooperation

393, rue St-Jacques Ouest

Bureau 200

Montréal, QC H2Y 1N9

Dear Mr. Vázquez:

Canada was pleased to review the draft Factual Record in relation

to Submission on Enforcement Matters SEM-03-005 (the “Montreal

Technoparc” submission), pursuant to Article 15(5) of the North American Agreement on Environmental Cooperation (NAAEC). In order to assist

the Secretariat in the development of the final factual record for this submission, I am pleased to submit the attached comments which address

inaccuracies in the text and clarify the presentation of some of the facts.

In addition to the attached comments, there are also concerns

about the inclusion of material that may affect the objectivity of the

factual record. Although the term “factual record” is not defined in the

NAAEC nor the Guidelines for Submissions on Enforcement Matters under

Articles 14 and 15 of the North American Agreement for Environmental Cooperation (“Guidelines”), these sources provide guidance regarding the

purpose and the type of information a factual record should include. As

previously noted by the Parties, from these sources, it is clear that the

purpose of a factual record is to provide the public with an objective,

independent presentation of the facts to allow readers to draw their own

conclusions with respect to the alleged failure to effectively enforce

environmental law. Since opinions and hypotheses may compromise

the objectivity of the document, they should not form part of the factual

record.

The Secretariat has provided legal analysis and interpretation of

legislation and case law, including interpretation of the Fisheries Act. It is

not the role of the Secretariat to review the law in a particular area. Of

particular concern is section 6.2 which presents a lengthy opinion on the

state of Canadian jurisprudence on this issue. In order to preserve the

neutrality of the report, the Secretariat’s analysis of case law should be

omitted from the factual record.

ATTACHMENT 2 317
Similarly, speculation on the success of enforcement action against

CN Rail before and after 1991, which is presented in sections 8.4.1 and

1.3., should be withdrawn from the report since it is not factual information.

As well, Canada wishes to emphasize the need for factual records

to conform to Council Instructions. This factual record concerns the alleged failure to effectively enforce s. 36(3) of the Fisheries Act. In canvassing this subject, the factual record must respect the direction provided

in the Council Resolution No. 04-05. This Resolution authorizes the preparation of a factual record that is explicitly focused on the geographical

area that is occupied by the Montreal Technoparc sector. In this regard,

the references to a study conducted on the Montreal Urban Community

wastewater effluent and on the surface water upstream of the wastewater discharge in the St-Lawrence River (Section 8.3.1.2 and Section 1.2),

and to the Love Canal in the United States (Section 8.3.2.1) are two examples of information that are extraneous to the scope of the Council’s

instructions. These passages do not contribute to the public’s understanding of the enforcement of the Fisheries Act in the Montreal Technoparc

sector, and therefore, should be removed.

Although Council Resolution No. 04-05 does request the documentation of facts concerning the “characteristics and fate of the contamination of the Montreal Technoparc site”, it does not request that the

CEC Secretariat present hypotheses on the possible sources of contamination. In this regard, the last part of section 8.3, following Figure 7,

should be removed from the factual record as this information is hypothetical and not factual. The first part of this section is an inference derived from factual information provided to the Secretariat by CN Rail.

Second, the report written for the CEC Secretariat by the former Head of

Inspections and Investigation Division of Environment Canada’s regional office represents an opinion rather than facts. This report has not

been peer-reviewed and the sources of information presented are not

known and cannot be verified. Given the nature of this information,

Canada is compelled to request that this section be omitted from the factual record.

In order to facilitate our review of the final factual record and

increase the timeliness of making a decision on publication, it would be

appreciated if the Secretariat could provide Canada with an electronic

version of the final factual record in “revision mode”.

318 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION
Please note that the attached comments are provided in French and

refer to the French version of the draft factual record. Canada will

promptly provide an English translation of these comments.

Canada notes that as a matter of procedure, comments of a Party

are not to be made public without such instructions from the Council

and only upon a Council decision to make the final factual record publicly available pursuant to Article 15(7) of the NAAEC.

Yours sincerely,

(original signed)

David McGovern

Assistant Deputy Minister,

International Affairs

ATTACHMENT 2 319
Section # Section of Record Page # Comment / Suggestions 1 Second paragraph: “...from the Montreal Technoparc site, formerly a household 

industrial waste disposal site ....” It would be more accurate to say that the Technoparc land that was used as a waste disposal site until 1966. 1 Second paragraph: For improved clarity, it would be useful to indicate that the CiMontreal was responsible for operating the Pointe Saint-Charles dump while it woperation. 3 First paragraph: The primary use of the Technoparc sector was a waste disposal site, wrail yard activities were concentrated in western section (based on magnetic north) oTechnoparc sector. Consequently, this paragraph should be adjusted to clarify the purof the entire sector. The second paragraph of Section 2 (p. 7) provides a more accudescription of the sector’s use. 3 First paragraph: “Over time, here as elsewhere ....” ‘Elsewhere’ is not defined and shouexplained or removed. 3 First paragraph: “...was later used for a short-takeoff and landing airport.” The report shspecify that the area “was later used by Transport Canada for a short-takeoff and lan

airport.” 3 Second paragraph: “... it was decided that urgent action was not needed....” To establis

facts, it would be useful to specify who made this decision. 3 Third paragraph: “The city of Montreal, in addition to accepting....” For more precishould be replaced by “...The city of Montreal undertook to accept the environmental and to indemnify and save harmless the sellers...”

3 Third paragraph: “Under provincial law ....” The name and section of the law in que

should be specified: section 65 of Quebec’s Environment Quality Act.
ATTACHMENT 2 321

Section # Section of Record Page # Comment / Suggestions

3 Fourth paragraph: “The federal Crown corporation Jacques Cartier and Champlain Bridges

Inc. (JCCBI) owns the land between Technoparc and the Champlain Bridge to the west ....”This information requires the following clarification: JCCBI owns a section of these lands,and under the Quebec government’s decree of 1963, the JCCBI administers a section of theriparian lands owned by Quebec.

1.2 Characteristics and Fate

of Contamination in theTechnoparc Sector

4 First paragraph: “Environmental studies conducted ...diesel fuel floating .... It is estimated

that [it] contains 4-8 million litres of diesel fuel ....” These data are taken from the 2002 and2004 SNC Lavalin report, which states that floating phase petroleum hydrocarbons arecomposed of diesel and a mixture of diesel and other heavier substances.

4 First paragraph:"The presence of PCBs in the diesel fuel is partly attributable to the latter’s

corrosive effect. It is believed that the fuel accelerated the release ... (e.g., old transformers)buried in this area.” The first sentence is incorrect: diesel acts as a solvent, not a corrosive; thesecond is based on an assumption. Removing these two sentences is recommended since theinformation is not factual.

4 Second paragraph: “The groundwater from the rail yard was then ....” This information is

incorrect. A correction should reflect the fact that the water is reinjected into CN lands.

4 Third paragraph: “In 2006, a center set up by Canada, Quebec, and the city of Montreal

received federal government funding ... .” This information is incomplete and could be moreprecise by replacing with the following: “In 2006, the Montreal Centre of Excellence inBrownfields Rehabilitation (MCEBR), a non-profit organization set up by Canada, Quebec,and the city of Montreal, received funding from Canada Economic Development (CED) toconduct a study on the treatability of groundwater in the Technoparc sector, including astudy on the sources of toxicity of the groundwater.”
322 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION Section # Section of Record Page # Comment / Suggestions 4 Third paragraph: “... that would reduce to a minimum the harmful components in the groundwater before it is discharged into the river or the city of Montreal sewer system... .” The following rewording is fact-based and would avoid making an assumption “ ... that would reduce to a minimum the harmful components in the groundwater.” 1.3 Facts surrounding Environment Canada’s inspections, before and after the issuance of a warning 5 First paragraph: “During the next six years, CN – a federal Crown corporation in the process of being privatized – and the city of Montreal...” This information is misleading and should be replaced with the following: “During the next six years, CN – which was privatized in 1995 – and the city of Montreal ...” This would be a factual and impartial presentation of the information. 5 Second paragraph: “In 1997, CN installed a groundwater pumping system on its property ....” This information is incorrect: CN installed a vacuum pumping (bioslurping) system to recover floating phase hydrocarbons on the edges of its land. This system was designed to pump the hydrocarbons, taking out as little groundwater as possible. 5 Second paragraph: “After 1991, under the Fisheries Act, CN could, in its defense, claim to have demonstrated due diligence ....” This sentence should be removed: it is an opinion and is not factual. 5 “Environment Canada engineers put forward ......” Provide the reference. 1.4 Facts surrounding Envi- ronment Canada’s Inves- tigation and Ecotoxicolo- gical Study 5 Fifth paragraph: “At the time, it was known that if the city ....” This sentence is an opinion and contains an assumption. Either the source should be identified, or the sentence should be removed.
ATTACHMENT 2 323

Section # Section of Record Page # Comment / Suggestions

1.5 Compliance Promotion

after Termination ofEnvironment Canada’sInvestigation

6 Fourth paragraph: “It was hoped that JCCBI’s involvement ....” This sentience should

specify who hoped and indicate the source. As presented, the sentence does not providefactual information.

7 Second paragraph: “In January 2006, the federal government announced ... ... large-scale

wastewater treatment projects.” It is incorrect to say that the federal government announcedits intention to invest C $25 million to clean up Technoparc because this was announced as apromise during a federal election campaign. To be more precise, it should also be stated thatBuilding Canada is planning to support brownfields redevelopment.

3.2 Description of the Sector

Comprising the Technoparc Site

11 Second paragraph: “... problems related to the production of gas...” The word gas should be

replaced with biogas.

11 Second paragraph: “... the land was unused until ... 1976, when the federal Department of

Transport .... The correct year is 1974, not 1976.

5 Information Gathering

Process

17 Second paragraph: “... detected a strong odor of gasoline.” Replace with: a strong odor of

hydrocarbons (SNC Lavallin’s 2002 and 2004 studies show that these hydrocarbons are a

mixture of diesel and heavier products, and not gasoline).

7.1 Fisheries Act Habitat

Protection and PollutionPrevention Provisions –Compliance and Enforcement Policy

26 The third paragraph of this section mentions that there were notable differences between the

draft and final versions of the Compliance and Enforcement Policy, which are describedfurther on in the text. There are no facts to support that statement, and no evidence providedin the rest of the chapter.

7.2 Decision to Prosecute 28 Second paragraph: “Under the Compliance and Enforcement Policy, prosecution is

therefore ruled out or at any rate unlikely in cases where a deleterious substance was
324 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION Section # Section of Record Page # Comment / Suggestions 7.2

(cont.)

Decision to Prosecute 28 deposited but no harm was or is likely to be caused to fish or their habitat.” This statement is

false and seems to stem from a misinterpretation of the Policy. It is true that it is not necessaryto prove harm to fish or their habitat to establish an infraction under section 36(3) of the Act.However, what the Policy states that in the event of damage or a risk of damage to fish orits habitat, prosecution is the preferred response – not necessarily the response that will bechosen, because there are other factors to consider, but it is the preferred response. Onanother important point, when the Department decides to opt for prosecution, the decisionas to whether or not to go ahead with the prosecution rests with the Department of Justice.This decision is based on various criteria, i.e., whether there is sufficient evidence, andwhether the

32 First paragraph: “Moreover, the process to privatize CN had already begun, in the early

1990s, when hydrocarbons suspected to be diesel fuel from the CN rail yard were observedsurfacing on the banks of the St. Lawrence.” This text suggests a link between CN’sprivatization and the possibility of liability for hydrocarbon upwellings. First, there are nofacts or evidence to confirm this assumption. Secondly, please specify who “suspected” and“observed” as the text seem to be referring to different actors.

32 First paragraph: “In these two transactions, the federal government was both the seller,

seeking to limit its environmental liability ...and a public authority responsible for environmental law enforcement.” The underlined text should be removed as this is an opinion,

and not a fact.

33 Footnote 139: The weblink to for this reference is not available. An information source which

confirms the validity of this statement should be identified.

8.1 Background 36 First paragraph: The shoreline did not recede, it advanced because of infilling.

37 First Paragraph: “This effluent was known to cause long plumes of pollution on the St.

Lawrence.” The footnote refers to information that is not fact-based.
ATTACHMENT 2 325

Section # Section of Record Page # Comment / Suggestions

37 Fourth paragraph: “...is located on the other side of the expressway, bordered to the west by

land belonging to JCCBI.” This is information incorrect. The following underlined textshould be added: “.....bordered to the west by land belonging to JCCBI and the Government

of Quebec.”

38 Second paragraph: “...was sold to the city of Montreal in the late 1980s, by the federal

government and....” As the date of sale is precise, replace the underlined text with 1989. Thisis the date of the deed of sale for the land.

8.3.1.1 LNAPLs 48 Fourth paragraph: “It has been known since the 1980s, if not earlier...” For a more precise

statement, replace the underlined text with the following: “According to studies done in theTechnoparc sector and submitted to the Secretariat for the development of the factual record,since the 1980s, the sector’s subsoil ...”.

49 First paragraph: “...it was known that this “oily” product ...” Include a reference which

indicates how this is known.

8.3.1.2 Groundwater 61 Last paragraph: “...but the groundwater samples were not taken...” This information is

incorrect and not impartial. It does not include the critical information contained in footnote237. We suggest replacing this sentence with the following: “The sampling campaignconducted by the city of Montreal in the summer of 2002 and the results obtained from thebioassays confirmed that the groundwater was toxic.” This means that footnote 237 isredundant and can be deleted.

8.4.2 Issuance of a Warning to

the City of Montreal

75 Second paragraph and Footnote 305: “In one case, a company....” Both the text and the

footnote have no link with Montreal Technoparc site and should not be included in thefactual record.
326 FACTUAL RECORD: MONTREAL TECHNOPARC SUBMISSION Section # Section of Record Page # Comment / Suggestions 8.6 Compliance promotion efforts following the decision by Environment Canada not to seek char- ges 94 First paragraph: “In November 2005, Canada Economic Development, following up on a suggestion by Environment Canada announced a contribution ....” This statement is inaccurate. Environment Canada suggested that MCEBR develop a project, which was subsequently funded by CED. For accuracy, replace this underlined phrase with the following: “...announced a contribution of $1.56 million...” [9] Closing Note 100 First paragraph: “In 1998, Environment Canada issued a warning against Montreal and proposed construction of a barrier to intercept the oil and contaminated groundwater migrating from the Technoparc to the Saint Lawrence.” This sentence suggests a link between Environment Canada’s warning and its proposal to construct a barrier. There are no links between these two facts. A warning is one of the possible consequences when there are reasonable grounds to believe in a violation of section 36(3) of the Fisheries Act has occurred. Such warnings are issued by Environment Canada’s Enforcement Branch. Regarding the second fact, a proposal by Environment Canada to construct a barrier is unlikely because the Department does not have the authority to approve projects that would interfere with compliance with section 36(3) of the Fisheries Act. 100 First paragraph: “When design specifications for the project were ready, Environment Canada received a complaint from environmental groups, under section 36(3) of the Fisheries Act, regarding the failure of the proposal to address discharges of contaminated groundwater into the Saint Lawrence.” The complaint received by Environment Canada in 2002 was not related to the city of Montreal’s proposal to install a system for recovering oil (LNAPL). In fact, the complaint was a request to the Department to open an investigation into the discharge of oil (LNAPL) upstream of the Victoria Bridge based on the premise that the party responsible for the discharge would be the owner of Technoparc, i.e., the city of Montreal.
ATTACHMENT 2 327

Section # Section of Record Page # Comment / Suggestions

115 It is Environment Canada that expressed reservations regarding the capacity of the project

proposed by the city of Montreal to bring the site into compliance with the Fisheries Act,given that the project did not include any interventions concerning groundwater anywhereon the site, which seemed at the time to have toxic potential. This potential was confirmed inthe ecotoxicological study, the results of which were known in the fall of 2002.

General comments Several times, the report mentions the results of interviews with several people. The sources

should be cited. One of these is on page 62, i.e., “However, several people interviewed by theSecretariat mentioned that it would have been unlikely for the city ...,” and another is on page3: “At the time, despite the environmental risks posed by this contamination ...”