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October 7, 2005
Mr. John Burke
Deputy Minister
Ministry of Municipal Affairs and Housing
777 Bay Street
17th Floor
Toronto, ON M5G 2E5
Fax: (416) 585-7211
Ms. Virginia West
Deputy Minister
Ministry of the Environment
135 St. Clair Avenue West
12th Floor
Toronto, ON M4V 1P5
Fax: (416) 314-6748
Ms. Gail Beggs
Deputy Minister
Ministry of Natural Resources
99 Wellesley Street West
6th Floor, Room 6630
Toronto, ON M7A 1W3
Fax: (416) 314-2216
Dear Sirs:
Re: The Corporation of the Township of Alnwick-Haldimand - Dump Site - Application by Shelter Valley Aggregates Limited for a Licence under the Aggregate Resources Act
Introduction
This letter is written on behalf of a group of concerned ratepayers resident in the Township of Alnwick/Haldimand (the “Municipality”) who have formed a corporation without share capital, Valley Voices Residents Association (VVRA) to represent their interest in dealing with the Municipality and with Shelter Valley Aggregates Limited.
Shelter Valley Aggregates Limited made an application dated May 14, 2003 for a Category 3, Class A licence to extract aggregates from a 56.4 hectare pit (the licence area). The licence area is located at the south end of the Municipality near the Oak Ridges Moraine and is legally described as Part Lot 5 and 6 Concession 3, Township of Haldimand. The licence necessitates a rezoning by the Council of the Municipality.
The purpose of this letter is threefold. Firstly to draw to the attention of the Ministry of Municipal Affairs and Housing certain non-compliances by the Municipal Corporation with the provisions of the Municipal Act, 2001 and the Planning Act. The Municipality is small and rural. In my years of experience as a municipal lawyer, it is not uncommon for there to be non-compliances with the law by such municipalities. In this situation, the cumulative effect of the non-compliance is considerable and may have severe irreversible consequences.
The second purpose is to draw to the attention of the Ministry of the Environment and the Ministry of Natural Resources that the licence area is part of or close to a “municipal dump site” known to contain toxic waste and hazardous materials alleged to be “closed”, and with ownership consequences which impact all Ministries.
The third purpose is to request the Ministry of Natural Resources and the Ministry of the Environment to examine closely the impacts of the proposed extraction on the water, the Oak Ridges Moraine and the environment generally. Reports have been requested, supplied and “peer reviewed” but do not address all of the environmental issues. The “haul route”, which is approved only by the Municipality (I know not why), proposes to use a “forced road” without proper Environmental Approvals prior to zoning the licence area for the aggregate use.
Because the issues overlap and involve all three Ministries, the letter has been addressed to the Deputy Ministers of each of the responsible Ministries in an attempt to initiate coordination and cooperation between Ministries and in an attempt to provide the Municipal Council with proper direction on process and the law.
We fully appreciate the Ministries’ inability to interfere directly or indirectly in the licence process. We are asking the Ministries to consider the issue raised and provide appropriate guidance.
1. Compliance with the Municipal Act, 2001 and the Planning Act
Planning Act
As indicated, the Municipality is rural, the municipal Council is small with limited professional skill i.e. no on-staff planner, no on-staff lawyer and with limited financial resources. As a result of the restructuring, the Township of Haldimand was amalgamated with the Township of Alnwick but both were about the same size so the limited financial resource situation remains. The Council does not have in house legal counsel and as a result of VVRA’s actions, recently obtained outside legal counsel to negotiate and advise on the “agreement” with the licence applicant, Shelter Valley Aggregates Limited. The Council has been reluctant and in fact on occasion has refused to refer to outside legal counsel any legal questions on behalf of VVRA because of the “costs”.
Of grave concern and most relevant to this licence application are the large number of residential severances previously approved by Council in the vicinity of the licence area which have not been fully identified on the licence application or related reports. The Council, in contravention of its Official Plan policies, and the Provincial Policy Statements, has allowed a proliferation of “farm lot” severances as “retirement lots” over the past few years. In many instances, the severances were a favour to a “farmer friend” and many farmers have many retirement lots. The Municipality’s Official Plan policies applicable at the time which restrict non-farm residential severances (Section 4(2)) have not been followed.
The licence area is located on a forced road known as Turk Road. There are many residential severances along Turk Road in proximity to the licence area which were granted in contravention of the Municipality’s Official Plan policies.
An example of one of those severances is one attached hereto given to David and Gayle Marion (Application No. B-04/2002 (Part Lot 6 Concession 3)). That severance application included a sketch which shows a non-operational landfill site nearby across Turk Road. The Town’s Official Plan policy on Waste Disposal provides in Policy Section 5(21)(b),:
Solid waste landfill sites should be designated as indicated on the attached Land Use And Transportation Plan Schedule A. These designations shall indicate the actual location of the solid waste landfill site and it’s area of influence, a distance of approximately 500 metres radius from the perimeter of the waste cell.
Policy 5(21)(i) provides that the:
Former solid waste landfill sites shall be indicated…and shall be zoned in a holding zone classification…(and where no site related environmental information is available) lands within a 500 metre radius of the perimeter of the waste cell are identified as waste disposal assessment area for study purposes.
The David and Gayle Marion severance was clearly within the 500 metre (1640 feet) radius and contravention to the provisions of the Official Plan in force and effect at the time of the application. The impacts are not known. All drinking water is from a drilled well.
Also, there is a general prohibition of aggregate operations within at least 30 metres of any adjoining property designed or used for residential purposes and where there is processing at the site– the distance is at least 90 metres (Section 5 16(vi)). Although the measurements should be to the lot line, there is no indication that the policy has been addressed on the application.
Municipal Act, 2001
Council’s non-compliance with the Municipal Act, 2001 is another issue. Section 239 of the Municipal Act, 2001 requires all meetings of Council to be open to the public with a number of exceptions. The Council has been holding closed sessions to discuss an agreement with the Shelter Valley Aggregates Limited to facilitate the use i.e. allow the rezoning on conditions, notwithstanding the fact that the zoning by-law has not been passed. When asked about the meetings, the Municipality alleges that the meetings are held in camera because the agreement is subject to solicitor client privilege. When Council moves from public session to private session it does not comply with the provisions of Subsection 239(4), and generally fails to understand its obligations under the Municipal Act, 2001 relating to fair and open public meetings.
The Municipality by meeting in camera, appears to have fettered its discretion to make a fair decision on the rezoning application i.e., it has already made up its mind to allow the rezoning, although it has not formally made the decision.
Obviously, this is a matter that can be argued in the courts, but why should ratepayers be put to this expense? Although the Municipality adheres to the rule of the Planning Act, it is not complying with the intent of the Act. The public process under the Planning Act is being undermined by Council’s actions. The ratepayers see no purpose in attending public meetings when the Council has made up its mind to allow the rezoning as it has exhibited through in camera meetings.
2. Municipal Dump
The licence area is Part Lot 5 and 6, Concession 3 Township of Haldimand. It is a known fact in the community that parts of these lands were used as a waste disposal site. Unfortunately, the Municipality does not appear to have adequate records despite a Municipal Freedom of Information and Protection of Privacy request.
Documents relating to the dump site have been made available to VVRA by the Ministry of the Environment. From these documents, it is apparent that a municipal landfill site was located on Lot 5, Concession 3 Haldimand Township in 1972. A memo from the then Department of the Environment indicates that the site was not fenced, the access road was not gated, there was no restriction on the hours, the method of disposal was trench and fill, the operation was considered acceptable at that time subject to the construction of a gate, signage and an attendant being present. Attached to the 1972 letter was a report from the Waste Management Engineer for the eastern region dated October 16, 1969. That report indicated that there were 4 waste disposal sites in Haldimand Township, one of which was the Vernonville site number 2. That inspection report indicates that the site being Lot 5 Concession 3 was 5 acres and was operated on the trench method of disposal located approximately 300 feet from the road.
A Provisional Certificate was issued March 7, 1972 for approval of a waste disposal site under the Environmental Protection Act, 1971. That certificate was issued subject to a number of conditions, and the site was shown to be at the southwest corner of Lot 5, Concession 3. The Provisional Certificate expired, and a further Provisional Certificate was issued which expired August, 1973. Thereafter a certificate was issued from August 31, 1973 to August 31, 1974.
The next record is an Inspection Report January 23, 1976. That report noted that there was “domestic waste”, “wood and brush”, “tires” and “heavy metals” being disposed of in the site by the trench and fill method. The attached sketch also indicated that DDT had been buried near the site in 1978 under the Health Unit supervision (copy of the sketch is attached). In February 1976, the Ministry of the Environment’s Senior Environmental Officer recommended closing the site and recommended that the refuse be segregated into 4 categories, i.e. wood and brush, heavy metals, tires and domestic waste. According to the records, the site was closed August 28, 1976.
A report prepared at that time was not very helpful in dealing with a number of important issues including hydrogeology. No environmental reports appear to have been done. The alleged distance to the well water supply was 7,920 feet, but there is no backup material to substantiate this information.
Local residents will confirm that materials resulting from the fire at the co-op in Grafton were deposited in this waste site. These included toxic chemicals and other materials, but there is no record of any disposal or clean up.
There is no record of any environmental reports having been made to identify the materials buried in this site, or that this site is properly closed, or that the property identifies the limits of the site.
The problem is magnified because all of the records examined refer to the dump site as being at the southwest corner of Lot 5, Concession 3. According to the records of the Municipality, a consent to sever and convey a 3.12 acre parcel being Part Lot 6, Concession 3, Township of Haldimand was a dump site. This was a dump site on the private property of Ruth Ben Holdings Limited. It appears that the dump site was part of Lot 6, (not Lot 5). The Township granted the consent to the conveyance of this dump site i.e. non-farm lot from Ruth Ben Holdings Limited to Turk Road Severance Limited. The consent was processed as application (B-18/2001) for Lot 6, Concession 3. The planner for the Pine Ridge Municipal Planning Agency indicated that “the proposed new 1.232 hectare lot will not be used for residential purposes and cannot be used for aggregate extraction because of previous uses.” The planning agency had no objection to the Consent Application, however, it is unclear whether this application was ever circulated to the Ministry of the Environment.
Turk Road Severance Inc., the grantee of this severance (B-18/2001) of the dump site was a company incorporated in the Turks and Caicos Islands. The company, according to the search of records of the Ministry of Consumer and Business Services, never obtained a provincial licence in Ontario to give it capacity to hold land in Ontario. Furthermore, Turk Road has not paid municipal taxes on these lands. A search in the Turks and Caicos Islands reveals no company called Turk Road Severance Inc., but does reveal a company called Turk Road Severance Limited, which was struck off the records in the Turks and Caicos and as a result is now dissolved. The dump site lands have likely escheated to the Crown and are the responsibility of the Public Guardian and Trustee. Therefore, the Government is the owner of the dump site which are located next to a proposed aggregate resources extraction site. Not only does this raise the question of potential liability, but it also raises the question of the ability of this Government to make decisions relating to the issuance of the licence in a fair and equitable way. Does it have a conflict of interest? Does the Municipality have a conflict of interest?
3. Environmental Impacts
The access road to the licence area is within the jurisdiction of the municipality. The ratepayers are opposed to the access road along Shelter Valley. A proposal has been made to have the access on the “forced road”. The forced road is undeveloped. It crosses several significant natural areas. A peer review of the applicants expert reports have identified this as an unresolved issue together with potential impact on fish habitat. The Municipality appears to be actively considering approval of the licence application without any request for a full environmental assessment or consideration of the legal implications relating to the conversion of the forced road (Turk Road) into a haul route.
The Oak Ridges Moraine lands are to the north of the site. There is a concern about the impact of the proposal on the water table and on the existing wells. The licence application does not accurately track the location of all the wells, nor provide complete data on the existing conditions of those wells identified. There is no indication that a full and comprehensive hydrogeological study has been undertaken to address draw down at the dump site.
The Township has been advised of a legal opinion that notwithstanding that an application is made for a licence above the water table there is nothing legally impeding a licencee from excavating below the water table. No enforcement mechanism is available to control such activity. The Township has not responded or in any way acknowledged this legal possibility or taken steps to protect the ratepayers against such a possibility. This licence area is next to a site which was proposed for a water taking permit and refused. Many of the issues raised on this application were raised and considered on the water taking permit application. The water taking permit was not issued. The Municipality does not appear to take into consideration any of the environmental issues raised in that application also opposed by ratepayers (not VVRA).
Conclusion
As indicated, we appreciate that it is not appropriate to intervene in the process, however, there are other avenues available to the Ministries to assist the municipality in understanding its duty including a duty to act fairly and consider the concern of its constituent ratepayers. The fact that there is a closed dump site near the licence area which may not have been properly or lawfully closed, and may be owned by the Province of Ontario and that there are residents near the dump site on well water should, I suggest, be examined very carefully. We would be most grateful if the Ministries would examine these issues and communicate with us at their earliest convenience.
Yours truly,
M. Virginia MacLean, Q.C.
cc: Valley Voices Residents Association attention C. Hanley
Mayor and Member of Alnwick-Haldimand Council
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