Volk Aerodrome Landfill Part II: New Tecumseth has woken up

My first post on this issue (click to read it here) is quite full. At risk of becoming incoherent I’ve created this post to provide my accounting and critical analysis of the special New Tecumseth Council meeting held yesterday.

Following that meeting, key are the facts that:  1) the Township issued an “Order To Discontinue Activity” (their fill by-law’s nomenclature for a Stop Work Order) as a result of the unanimously approved motion at Council’s March 26th meeting. And 2) the Ontario Ministry of Transport shut the site down on March 28th, apparently as a result of traffic issues; the site entrance has had concrete barriers placed in front of it, barring trucks from entering or leaving.

Below is a detailed account of the Special meeting, including a link to the staff report for Council’s review and approval. You may not want the play-by-play, so for your convenience here is a summary of what I believe are the critical points that this juncture:

1)  The key rhetorical argument – that 1493690 Ontario Inc. is relying upon, from which there is so much haze rising in the room (my words):

Aerodrome and aerodrome landing strip construction, including landfill operation, hanger construction, as a matter of fact, any aspect of an aerodrome construction or operation,  is within the regulatory authority of the Federal government. Period.  No requirement for a permit; no requirement for a water or hydro geological tests, etc.

The fact is, this is not the law.  Transport Canada will affirm to New Tecumseth in short order that landfill operations are within their regulatory control in order to protect the environment.

2) These lands are on highly sensitive Moraine lands, very restricted via the Moraine Act for development of nearly any kind.  Even if the aerodrome owners can argue their activities are an exception to the Town’s fill bylaw, in my opinion the Moriane Act removes virtually any legal approval of development.

3) The next logical steps in all this is comprehensive soil sampling and testing of the site, followed by remediation, for which the Town has the authority to order.  How long the owners’ lawyers can maintain the haze surrounding (1) above will determine how quickly these are addressed.

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It was another packed Council chambers in Alliston as Council met exclusively to update concerned residents on the status of the motion against 1493690 Ontario Inc., or to be transparent, Mr. Ralph Palmisano and his (apparent) investor partners (unknown who they are) who have a stake in the aerodrome they are apparently expanding with the need for copious amounts of landfill.

Hot off the press, the Town Clerk distributed Report #CAO-2-12-04 (click here to download and read it).

Its key recommendation was:  “…that the Town Solicitor and staff be directed to take the necessary steps to ensure that the Town’s authority in respect of the placement of fill on the property located at 8128 Highway #9 is complied with”.

At the conclusion of the meeting, this statement was revised.  While I don’t have the exact wording, the intent of Council is to provide for a period of time between now and the next Council meeting on April 16th where the owners and solicitors can meet to discuss the finer aspects of what constitutes activities that may, or may not, interfere with the construction and/or operation of an aerodrome.

And this is where the haze just keeps rising.

Staff has, in my opinion, correctly advised Council, and I quote from page 2 of the report:

“…the Federal representatives have indicated that other federal legislation as well as provincial and municipal legislation applies to the development to the extent that it does not interfere with matters  integral to aviation.  In fact the Minister has specifically indicated that fill being brought on to the Scugog site was not integral to aviation and therefore the Aeronautics Act did not apply”.

Bravo.  I was told this directly by Keith Reilly of Transport Canada myself. Mr Reilly backs this up with the email attachment 4(b) in the report. And if you don’t know, in the Scugog case, the court ruled that the Municipality had jurisdiction over lands that had been intended for an aerodrome, but where there was none before at the retired gravel pit intended to become one by the owner: the judge went further in his discussion to say that, in essence, the same would apply to existing aerodromes.

The final nail in the landfill’s life is in the conclusion on Page 2:

“Conclusion – Accordingly, we are of the opinion that there is:

i) nothing to prevent the Province from acting within its jurisdiction in respect of adverse impacts resulting from the placement of fill on an aerodrome site, and

ii) nothing preventing the Town from proceeding to enforce the Town’s Site Alteration and Fill B-law …

…providing such regulatory authority and enforcement does not interfere with or prevent a Federal undertaking.  Therefore while we cannot stop the development or expansion of an aerodrome site, we can enforce our by-laws and work in partnership with the Province to address environmental impacts that result from such placement of fill and development”.

So … to make a long story short … municipalities have no authority to stop an aerodrome from being constructed. But they clearly have the authority, in my well-researched opinion, to apply the Planning Act and their fill by-law in order to protect residents. In the words of Mayor Mike MacEachern, “the Town is confident it will be successful as it is acting in good faith and upholding the public interest”.

I’m ready to call it a day right there!  But it gets better:  The Town Clerk describes more facts to bear on the status of the site vis a vis other agencies and its own by-laws:

1) MTO:  the company has a permit to access the site that expires on May 20th. MTO has revoked this permit until it has submitted a plan for traffic and dirt control.  If so, MTO will limit traffic to 300 trucks/day.

2)  Ministry of Environment: MOE inspectors visited the site on March 27th. a) Owners are directed to provide data and records for all fill and data for prior deliveries as well as future planned shipments. b) Owners required to have a hydrological study scheduled, including a review of wells.

3) New Tecumseth Comprehensive By-law:  The owners have no application submitted for development. If they do not submit one by April 12th, the Town will issue a work order requiring them to do so.

4) Agreement with Town: Owners need to guarantee and demonstrate the volumetric quality of all fill,a geotechnical report by a firm acceptable to the Town, plus detailed plans for the site itself, extending 300 meters into adjacent lands.

Sounds to me like the hammer has dropped on 493690 Ontario Inc.!

But alas no, they (or I should say, 493690 Ontario Inc.’s lawyers) are sticking to their haze. The Town Clerk states that the Town requires clarification from Transport Canada on what work does not fall within their jurisdiction (more clarification in my mind, as I have no doubts about this as you read above).  She adds that the owners do not intend to submit an application. So likely the Township would need to ask for an injunction to force compliance with the Comprehensive By-law.

Town Counsel summarized the Town’s position quite simply by stating that what they thought was an original application in late 2010 was only for an airstrip. “Things have changed”, Feeley said. “The Federal government has clearly indicated they don’t regulate construction, so the Province and municipalities can play a role here”.  He described the Town’s options and associated risks as follows:

i) Injunction:  activity will stop once issued, but if not successful in court is sued the owners will be entitled to damages.

ii) Court Order: Less risk as the owners can still operate the landfill until following this procedure.

Now it’s time for the Owner’s lawyer to make a deputation and answer questions:

- He claims the owners had met with New Tecumseth staff before the property’s purchase closing in May 2011, as well as with surrounding neighbours.

- He claims the owners were never advised by the Town that a permit was needed, and in fact, it was acquiesced that the Town did not require one.

- His core argument is: a landing strip is integral to the operation of an aerodrome, and as aerodromes are under Federal jurisdiction, a permit is not required.

At this point I am choking from the haze.

But he goes on:

- Regarding traffic issues, he states that the owners do not own the trucks delivering fill to the site. Therefore, they cannot be responsible for traffic issues.

At this point I am choking from the haze AND I can barely see.

- Regarding quality of fill, he states that MOE has been on the site multiple times; that most of the fill is coming from a contract between the owners and the T.T.C.; the T.T.C. has certificates of analysis for all fill; and that the issue of quality fill has been raised [by the MOE]; finally, that in the case of damages against the Town, “…damages won’t be minimal”.

- Regarding traffic issues, he stated that MTO has had several meetings and visits with the owners; that owners are willing to reduce the volume of truck loads to 300/day, plus or minus 15%; that they will ensure the free flow of movement and right-turn lanes; that site operations will be restricted to 9:00 a.m. – 4:00 p.m.; and that the driveway into the site will be paved.

Whew!  This sure beats General Hospital!

Here’s the thing – the key rhetorical argument – that 1493690 Ontario Inc. is relying upon, from which there is so much haze rising in the room (my words):

Aerodrome and aerodrome landing strip construction, including landfill operation, hanger construction, as a matter of fact, any aspect of an aerodrome construction or operation,  is within the regulatory authority of the Federal government. Period.  No requirement for a permit; no requirement for a water or hydro geological tests, etc.

The fact is, this is not the law.  And 1493690 Ontario Inc.’s house of cards is about to fall (it has already in my opinion): Transport Canada will affirm to New Tecumseth in short order that landfill operations are within their regulatory control in order to protect the environment.

Until then, can somebody open a window?

One last thing: But what about the Moraine?  I requested, and was allowed, to make a short statement prior to conclusion of the meeting, where Council voted unanimously on the revised recommendation. As my first post on this issue describes visually in detail, the aerodrome lands (including the Tecumseth Pines lands) are situated directly on top of very sensitive Moraine lands and aquifers.  This was never raised in the presentations to Council by the Clerk, Town Counsel, or in questions by Council to the owners; Counsel.

The Moraine Act sets the bar exceedingly high for development to occur on lands such as this. As a result, it is highly unlikely the Town could ever issue a permit for construction of any kind, especially those being undertaken at this site.

I brought these facts to the attention of Council, and I am glad that in response, Mayor MacEachern assured me they are well aware of them.

The next logical step in all this is comprehensive soil sampling and testing of the site, followed by remediation, for which the Town has the authority to order.  I can’t wait to see the sparks fly then: the potential dollars in damages could easily get in to the millions if it is proven there is contaminated soil.

I’ll attend the April 16th Council meeting for an update and I will report back.

A long and complicated read. I hope you understood all this and that you find it helpful. Please comment below!