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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. 1,21A REoYCLEE PAPER E_L THIS 6 PRM D(V RECYCLED PAPER ...2 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 ...3 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. ...4 1 UJ 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 12 U4 ...5 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 ��i�j 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 ...7 U6 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. ffyy ...8 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 ...9 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. ...10 1 2J9 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 ...11 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 1211 ...12 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 . ..0742A (12/92) �� .. 100 % Unbleached Post-Consumer S9ock - ! I ..� 7777n7)))) 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 h:1wp\2- 8\pn.jsh ,y C This paper contains recycled material. El