HomeMy WebLinkAboutPD-43-94Recommendations:
It is respectfully recommended to Council the following:
1. THAT Report PD -43 -94 be received;
2. THAT Laidlaw Waste Systems (Durham) Ltd. be advised that a Rezoning
Application must be submitted to permit the proposed landfill
reclamation project and additional waste disposal at their existing
landfill in Part Lot 12, Concession 3, former Township of Clarke;
3. THAT the Ministry of Environment be advised that the Municipality
of Clarington requests that a hearing before the Environmental
Assessment Board be required in respect of the proposal submitted
by Laidlaw;
4. THAT the Durham Region Planning Department, Mr. Gord Mills, M.P.P.,
Mr. Normund Berzins of the Committee of Clarke Constituents,
Laidlaw Waste Systems (Durham) Ltd., all interested parties listed
in this report and any delegation, be forwarded a copy of Report
PD -43 -94 and be advised of Council's decision.
1. BACKGROUND
1.1 This report has been prepared to examine issues related to the
Official Plan and Zoning By -law conformity of the landfill
reclamation operation proposed by Laidlaw, and also to examine
possible Municipal involvement in the approvals process
pursuant to the Environmental Protection Act. In this regard,
it is appropriate to review information related to the
existing landfill site, as well as the reclamation proposal
itself.
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REPORT NO.: PD -43 -94 PAGE 2
2. EXISTING LANDFILL OPERATION
2.1 History
2.1.1 According to information submitted by Laidlaw, landfilling
commenced during the mid- 1950's on a portion of the subject
site which was previously used for gravel extraction. In
March 1971, a Provisional Certificate of Approval for the
landfill was issued by the Ministry of Energy and Resource
Management. Landfilling operations have been permitted to
continue since that time through the issuance of new
Provisional Certificates.
2.1.2 The landfill is currently operating under the conditions of a
Provisional Certificate of Approval issued in December 1985.
The landfill currently consists of two mounds separated by a
pipeline easement. The current Certificate permits the
landfilling of a maximum of 816.47 tonnes of residential,
commercial and non - hazardous solid industrial waste per week.
Since October 1990, the volume of waste being received at the
landfill has been considerably reduced.
2.1.4 A portion of the leachate from the landfill mounds is
collected and discharged to two Rapid Infiltration Basins
which lie to the east of the north mound. Laidlaw maintains
that the contamination in the leachate is attenuated as it
passes through the soil prior to its discharge to Graham
Creek, and that the site has no measurable impact on Graham
Creek. However, the Municipality's hydrogeological consultant
has advised that the leachate is escaping virtually untreated
into Graham Creek.
2.1.5 In April 1993, Staff received a letter from the Ministry of
the Environment (Attachment No. 1) indicating that they had
received information that the Laidlaw landfill had achieved
the maximum contours allowed under the Provisional Certificate
of Approval and was no longer receiving waste. Final grading
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REPORT NO.: PD -43 -94 PAGE 3
and vegetation of the mounds would proceed in Spring 1993.
However, the technical report on the reclamation proposal
recently submitted by Laidlaw indicates that a very limited
amount of waste continues to be disposed of at the site, and
that additional capacity remains on the north mound.
2.2 Official Plan Policies
2.2.1 The 1991 Durham Regional Official Plan, as approved by
Regional Council, designates the landfill site as 'Major Open
Space' and 'Permanent Agricultural Reserve', with an
indication of 'Hazard Lands' associated with Graham Creek.
Map A5 of the Plan does not recognize the existing landfill
operation. The Plan states that the establishment of new
waste disposal sites, or the expansion, or increase in
capacity of existing waste disposal sites shall require an
amendment to the Plan.
2.2.2 Laidlaw submitted two letters of appeal to the Ministry of
Municipal Affairs in respect of the 1991 Regional Official
Plan. In approving the Regional Official Plan in November
1993, the Ministry referred several portions of the Plan to
the Ontario Municipal Board, including the land use
designation for the Laidlaw landfill and a number of the
policies related to waste management, including the policies
discussed above.
2.3 Zoning By -law
2.3.1 The landfill site is currently zoned 'Agricultural (A)' and
'Agricultural - Special Exception (A -1) by Comprehensive
Zoning By -law 84 -63. The lands within the Regional Storm
floodline of Graham Creek are zoned 'Environmental Protection
(EP)'. The operation of a waste management facility is not a
permitted use within these zones.
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REPORT NO.: PD -43 -94 PAGE 4
2.3.2 Laidlaw has previously indicated that it is their opinion that
the existing landfill is a legal non - conforming use and can
continue to operate as such since it existed prior to the
adoption of By -law 84 -63 and its predecessor, By -law 1592 of
the former Township of Clarke.
2.4 Infill Proposal
2.4.1 Laidlaw previously proposed to relocate the two natural gas
pipelines which currently separate the two waste mounds, and
deposit waste at a rate of 895 tonnes per week over a two year
period on the vacated easement (Infill proposal) . This would
have resulted in a total of approximately 90,000 tonnes of
waste being deposited.
2.4.2 Laidlaw submitted Official Plan Amendment and Rezoning
Applications seeking to recognize the existing landfill and to
permit the Infill proposal. Laidlaw also submitted an
application to the Ministry of the Environment for approval of
the Infill project under Part V of the Environmental
Protection Act.
2.4.3 The Ministry of the Environment advised Laidlaw that a hearing
under Part V of the Environmental Protection Act would be
required for the Infill proposal. In permitting the Infill
application to proceed, the Ministry also required Laidlaw to
obtain the necessary Official Plan and Zoning Amendments under
the Planning Act. In July 1989, Laidlaw requested the
Environmental Assessment Board to hold a hearing under the
Consolidated Hearings Act to deal with the various
applications related to the Infill proposal.
2.4.4 The applications for Official Plan Amendment and Rezoning were
denied by Regional Council and Newcastle Council respectively
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REPORT NO.: PD -43 -94 PAGE 5
in early 1992. Laidlaw subsequently withdrew their
application for approval of the Infill project under the
Environmental Protection Act.
2.4.5 The Public Works Department noted, in its review of the Infill
proposal, noted that the Municipality's roads, in particular
Concession Road 4, were not designed to accommodate
significant truck traffic and that, in their present condition
and level of maintenance, the roads could not support the
truck traffic relating to the Infill proposal. The Department
objected to approval of the rezoning application unless the
applicant bore the full costs of upgrading all existing
Municipal roads on the haulage route.
2.4.6 A number of area residents objected to the Infill proposal
citing, among other concerns, the dust and noise impacts and
the effect of waste truck traffic on local traffic and school
buses. It was their concern that the negative social impact
upon the community would persist if the landfill operation was
permitted to continue.
2.5 Environment Canada Investigation
2.5.1 In 1991, Environment Canada advised the Town that it had
initiated a preliminary investigation pursuant to the
Fisheries Act, to determine if the existing Laidlaw landfill
is releasing substances harmful to fish into Graham Creek.
2.5.2 The final report on the investigation submitted by Environment
Canada's hydrogeological consultant in October 1993, noted
that leachate contaminated groundwater exceeding Provincial
Water Quality Objectives is discharging directly into Graham
Creek through the infiltration of untreated water from the
rapid infiltration basins, and surface seeps contaminated by
leachate or water from the basins. The Report also questioned
the reliability of water quality samples taken from Graham
Creek. ... 6
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REPORT NO.: PD -43 -94 PAGE 6
3. OVERVIEW OF RECLAMATION PROPOSAL
3.1 The reclamation proposal would involve four main operations:
the excavation of waste from the landfill mound, the
separation of recyclable materials, fines and waste - overs, the
installation of the landfill liner and leachate collection
system, and the deposition of the waste -overs and newly -
received waste back onto the landfill footprint. Laidlaw has
indicated that all waste will be stock -piled within the
existing footprint of the south mound.
3.1.2 Laidlaw has estimated that air space equivalent to between
42,000 tonnes and 58,000 tonnes of waste would become
available for landfilling through the mining of the south
mound. This would extend the life of the landfill by
approximately 1.5 years at a rate of 66 trucks per week.
3.1.3 Laidlaw has also indicated its intention to extend landfill
reclamation operations to the north mound if the initial
proposal for the south mound is successful. Although no
specific data for the north mound has been provided by
Laidlaw, it is reasonable to assume that, given its
considerably larger size, the reclamation of the north mound
would create more air space for landfilling than on the south
mound.
3.1.4 The potential exists therefore, for the reclamation of the two
landfill mounds to create additional landfilling capacity well
in excess of the 90,000 tonnes proposed through the Infill
project. Landfill reclamation would also extend the active
life of the site beyond the two year time frame proposed for
the Infill project.
4. OFFICIAL PLAN AND ZONING BY -LAW CONFORMITY
4.1 The Planning Act permits legal non - conforming uses to be
continued "if such land, building or structure was lawfully
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REPORT NO.: PD -43 -94 PAGE
used for such purpose on the day of the passing of the
(restrictive zoning) by -law, so long as it continues to be
used for that purpose."
4.2 Section 20.4.4 of the 1991 Regional Official Plan also defines
the rights of legal non - conforming uses. This section permits
area municipal Councils, at their sole discretion, to zone to
permit the continuation, expansion or enlargement of legally
existing uses, or similar uses, which do not conform to the
designations and provisions of the Official Plan. The zoning
of such uses is subject to four conditions, two of which are
relevant to the review of the Laidlaw reclamation proposal, as
follows:
"a) (such uses) have no adverse effect on the present uses of
the surrounding lands or the implementation of the
provisions of this Plan;
C) (such uses) are accessible by a public road ....... which
is of a standard construction adequate to provide for the
additional traffic generated by the proposed use."
4.3 A number of issues must be addressed in determining whether or
not applications for rezoning and /or official plan amendment
would be required for the proposed landfill reclamation
project, as discussed below.
4.3.1 Does the reclamation project constitute a 'de facto' expansion
of the landfill site? Laidlaw has indicated that all waste
generated through the mining operation will be stockpiled on
the existing landfill footprint. It could be interpreted from
this that the existing landfill operation is not being
expanded. However, the Provisional Certificate of Approval
for the site does not permit landfilling to continue
indefinitely. It is Staff's opinion that any activity which
would increase the capacity of the landfill to receive waste,
including the proposed reclamation operation, constitutes an
expansion to the landfill operation.
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REPORT NO.: PD -43 -94 PAGE 8
4.3.2 Can landfill reclamation be considered as a normal component
of, or as a similar use to, landfilling operations at the
Laidlaw site? Activity at the subject landfill site over the
past forty years has been related to the disposal of waste.
This is the use that enjoys legal non - conforming status.
Landfill reclamation or mining involves the removal of waste
from the waste mounds and the separation of recyclable
materials. It is not an activity that is contemplated by the
existing Provisional Certificate of Approval for the site, and
as noted in correspondence from the Ministry of the
Environment, it is an new enterprise to Ontario. In Staff's
opinion, landfill reclamation would constitute a new activity
not covered by the legal non - conforming status of the waste
disposal operation.
4.3.3 Have landfill operations continued uninterrupted at the site?
The intent of Section 34(9) of the Planning Act is that, once
a legal non - conforming use ceases to exist, it cannot be re-
established. In this regard, Staff note the letter from the
Ministry of the Environment and the fact that local community
has lived with a 'closed landfill' since October 1990. In
Staff's opinion, there is a considerable argument to support
the position that the landfilling operations at the site have
ceased.
4.3.4 Does the proposed landfill reclamation operation and the
additional landfilling of waste at the Laidlaw site meet the
conditions set out in Section 20.4.4 of the Regional Official
Plan? As noted earlier, trucks hauling waste to the site have
had a noticeable impact on the condition of area roads, and
area residents have also expressed concerns with respect to
the negative impacts associated with truck traffic and site
operations. As well, the consultants for both the
Municipality and Environment Canada have indicated significant
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REPORT NO.: PD -43 -94 PAGE 9
concerns with the environmental integrity of the existing
landfill. In Staff's opinion, the proposed reclamation
project does not meet the tests of Section 20.4.4 (c) related
to the suitability of area roads, and Section 20.4.4 (a),
which deals with the adverse impact on surrounding lands.
4.4 Based on the above discussion, it is clear that a rezoning
application must be submitted to permit the landfill
reclamation project and the disposal of additional waste at
the Laidlaw landfill site.
4.5 However, it is not as clear whether an amendment to amend the
Regional Official Plan would be required. In a recent letter
to the Ministry of Environment and Energy (Attachment No. 2),
the Regional Planning Department noted that proposed "mining"
operation would significantly alter the existing operation of
the landfill. The letter also noted that the Ministry's
position on the conformity of the proposal to the existing
Provisional Certificate of Approval for the landfill would
form part of the Region's review of the issue of conformity to
planning documents.
4.6 In Staff's opinion, there is considerable evidence to suggest
that an amendment to the Regional Official Plan would be
required to permit the landfill reclamation project and the
additional landfilling. In particular, Staff note the
cessation of landfilling activity at the site and the failure
of the proposal to meet the tests of Section 20.4.4.
5. APPROVAL PROCESS PURSUANT TO THE ENVIRONMENTAL PROTECTION ACT
5.1 The Environmental Protection Act establishes the powers and
procedures to be used by the Ministry in the regulation and
control of contaminant discharges, including the requirement
for a Certificate of Approval for a proposed undertaking.
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REPORT NO.: PD -43 -94 PAGE 10
Part V of the Act sets out the specific interpretations,
prohibitions and requirements related to waste management,
including whether or not a hearing before the Environmental
Assessment Board in respect of a proposed undertaking is
required. The Ministry of the Environment has indicated that
it is currently reviewing the necessary approvals that would
be required for landfill reclamation operations.
5.2 Staff note that there are many factors which indicate that a
hearing before the Environmental Board is warranted for
Laidlaw's current proposal.
5.3 The landfill site has never been subject to either a Board
Hearing or a detailed and comprehensive analysis of the site's
suitability for landfilling. Nevertheless, the Ministry has
continued to issue Certificates of Approval for the landfill.
To permit the establishment of a new activity at the site and
the additional landfilling of waste without the benefit of
either a hearing or a full technical analysis, especially
given that the site has apparently reached its final approved
contours, cannot be justified.
5.4 Staff also point to the considerable evidence that the rapid
infiltration basins are not properly treating the leachate
prior to its discharge to Graham Creek, and Laidlaw's
assertions to the contrary. This is a matter of considerable
concern given Laidlaw's proposal to dispose of additional
waste at the site, and to use the basins to treat the
additional leachate collected from the installation of the new
collection system.
5.5 It is also useful to compare Laidlaw's current proposal with
its previous Infill proposal. As noted earlier, the
reclamation project has the potential to increase the life and
the landfilling capacity of the site beyond that proposed by
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REPORT NO.: PD -43 -94 PAGE 11
the Infill project, as well as introduce a new activity (ie.
landfill reclamation) not contemplated by the existing
Provisional Certificate of Approval. The Ministry referred
Laidlaw's Infill proposal to a hearing before the
Environmental Assessment Board, although it was never held
because Laidlaw withdrew its application.
5.6 Staff note that the following statements were made by Ministry
Staff in their review of the Infill proposal:
• when applying for the expansion of an existing landfill,
it must be demonstrated that the existing site is
operating in an environmentally sound manner;
• the existing landfill is intended to eventually close
under the conditions of its Provisional Certificate of
Approval;
• issues related to surface water standards and the quality
of discharge to Graham Creek have not been addressed to
the Ministry's satisfaction, and were referred to the
Environmental Assessment Board for resolution.
5.7 Conclusion
5.7.1 Staff has other concerns with Laidlaw's reclamation proposal
and the documentation submitted in support; however, it is
not necessary to list them all. It is apparent from the
matters discussed above that a hearing before the
Environmental Assessment Board must be held to properly
address the technical issues related to Laidlaw's landfill
reclamation proposal.
Respectfully submitted, Reviewed by,
Franklin W, M.C.I.P.
Director of Planning
and Development
JAS *FW *JIP
*Attach
24 March 1994
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REPORT NO.: PD -43 -94 PAGE 12
Interested parties to be notified of Council's decision:
Mr. A. Dominski, P. Eng.
Waste Sites and Systems Approvals
Ministry of the Environment
250 Davisville Avenue
3rd Floor
Toronto, Ontario
M4S 1H2
Mr. Michael Walters
Laidlaw Waste Systems Ltd.
3410 South Service Road
P.O. Box 5057, Station A
Burlington, Ontario
L7R 3Y8
I
original signed by .
D.J. Beach .
District. Officer
York Durham .District
cc. D. Hamre,. Mayor, Town of Newcastle
D. Scott, Councillor, Town of Newcastle
J. Szwarz, Town of Newcastle
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DURHAM
REGION
The Regional
Municipality
of Durham
Planning
Department
Box 623
1615 Dundas Street E.
4th Floor
Lang Tower, West Building
Whitby, Ontario
Canada L1 N 6A3
(905) 728.7731
Fax: (905) 436 -6612
")DR. M. R. MICHAEL, m c I
Commissioner of Planning
March 15, 1994
Mr. Paul Nieweglowski
Hydrogeologist, Appraisers
Ministry of the Environment & Energy
Approvals Branch
3rd Floor
250 Davisville Avenue
Toronto, Ontario
M4S 1H2
Dear Mr. Nieweglowski:
- -- _
I' °!' 1' 1 6 1994
i1!Ul`,!iCli'FiL.I' "' ('� l'iU
PLANNING I)EPA i Viouff
Re: Laidlaw Waste Systems "Mining" Proposal, Clarington
File: 4.4.12.1 please Quote Ref. No.:
We are in receipt of a copy of correspondence dated February 15, 1994 from Mr. M.
Walters of Laidlaw Waste Systems Ltd. to yourself with respect to the above -noted
project. It is not clear from the material if this proposal conforms to the existing
Provisional Certificate of Approval for the site. Our initial reaction would be that
such an undertaking would significantly alter the existing operation and should be
subject to a rigorous review and appropriate amendments to the Certificate. This is
especially important given the present inactive nature of the site.
This site is not identified for a waste management facility in the Durham Region
Official Plan. Your position on the conformity of Laidlaw's proposal to the existing
Provisional Certificate would be part of our review of the issue of conformity to
Planning documents in the Region. We would expect that an application to amend the
Provisional Certificate would be circulated to the Region for comment in accordance
with normal practice and we would then respond through Regional Council. As a
result, we will await your decision on the Certificate issue before reviewing this matter
further.
If you have any questions please do not hesitate to contact me.
Yours truly,
John Sharpe
Senior Planner
Strategic Planning Branch
:lm
CC. M. Walters, Laidlaw Waste Systems ltd.
J. Szwarz, Municipality of Clarington
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