HomeMy WebLinkAboutPSD-042-14 0
C.�CU 11 REPORT
PLANNING SERVICES DEPARTMENT
Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE
Date: June 23, 2014 Resolution#: 1tfipa4iA By-law#: -
Report#: PSD-042-14 File#: PLN 33.4
Subject: PORT GRANBY PROJECT: BY- LAW TO TEMPORARILY RESTRICT THE USE
OF NICHOLS ROAD SOUTH
RECOMMENDATIONS:
It is respectfully recommended that the General Purpose and Administration Committee
recommend to Council the following:
1. THAT Report PSD-042-14 be received;
2. THAT, pursuant to Section 35 of the Municipal Act, 2001, Council pass the by-law
contained in Attachment 1 to Report PSD-042-14 to temporarily remove the public right
of passage over a portion of the road allowance between Lots 3 and 4, Broken Front
Concession, former Township of Clarke (Nichols Road);
3. THAT the Mayor and the Municipal Clerk be approved to sign a lease with Canada for
the use of Nichols Road South substantially in the form attached to Report PSD-042-14
(Attachment 2); and
4. THAT a copy of Council's decision be forwarded to the Port Hope Area Initiative
Management Office and the Southeast Clarington Ratepayers Association and any
interested parties listed in Report PSD-042-14.
Submitted by:
Reviewed by:
Da id J. rome, MCIP, RPP Franklin Wu,
Director of Planning Services Chief Administrative Officer
JAS/FL/df
16 June 2014
CORPORATION OF THE MUNICIPALITY OF CLARINGTON
40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L1C 3A6 T 905-623-3379
REPORT NO.: PSD-042-14 PAGE 2
1. BACKGROUND
1.1 The Port Granby Project is being undertaken in a number of phases:
• Phase 1 — Environmental Assessment (EA). This phase concluded in Fall 2009 with
Council's acceptance of the Screening Report for the Project prepared by the federal
Regulatory Authorities. This phase was followed by a two year transition period
during which Canada prepared detailed drawings and reports related to the various
works required for the Project.
• Phase 2 — Implementation and Construction. The Project is currently in this phase,
which commenced with the issuance of a licence for the Project by the Canadian
Nuclear Safety Commission (CNSC) in November 2011 and the federal
government's announcement of a 10-year funding commitment for the Port Hope
Area Initiative in January 2012. The tender documents to undertake the construction
of the Lakeshore Road underpass, the excavation and relocation of the waste, and
the construction of the new waste storage mound are expected to be issued shortly.
Phase 3 — Monitoring and Maintenance. This phase, which is expected to last
several hundred years, will commence after all of the waste at the existing Port
Granby Waste Management Facility has been relocated to the new Long Term
Waste Management Facility and the storage mound has been capped.
1.2 A number of municipal roads in the Port Granby area will be reconstructed and/or used
by vehicles and equipment associated with the Project. These include portions of
Newtonville Road, Concession Road 1 and Elliott Road for the delivery of construction
materials for the Project (Primary Haul Route), a section of Lakeshore Road for the
construction and use of an underpass for the haulage of waste, and Nichols Road south
of Lakeshore Road to provide access to the east gate of the Port Granby Waste
Management Facility and to facilitate waste excavation in the East Gorge.
1.3 In September 2011, Council authorized staff to finalize agreements with the
Government of Canada regarding the use by Canada of municipal roads for the Port
Granby Project. The Mayor and Clerk were also authorized to sign the roads
agreements with the Government of Canada once they have been finalized to the
satisfaction of the Municipal Solicitor(Resolution # GPA-544-11).
2. ROADS AGREEMENTS
2.1 To date, two roads agreements between the Municipality and the federal government
have been signed. The first agreement, signed in April 2012, addressed the upgrading
and use of the Primary Haul Route and the leasing of a portion of Elliott Road to
Canada for the duration of the construction phase of the Port Granby Project. Council
passed By-law 2012-036 to temporarily remove the public right of passage and to
temporarily restrict the right of access by owners and tenants of the abutting lands over
REPORT NO.: PSD-042-14 PAGE 3
the section of Elliott Road south of Concession Road 1 to the new waste water
treatment plant.
2.2 A second roads agreement was entered into by the Municipality and the federal
government on April 7, 2014. This agreement addresses the construction and use of
the Lakeshore Road underpass, the servicing easement under Lakeshore Road for the
conveyance of untreated leachate and treated clean water to and from the water
treatment plant, and the leasing of Nichols Road south of Lakeshore Road to its
terminus at Lake Ontario (identified as 'Nichols Road South' in the Agreement).
2.3 Nichols Road south of Lakeshore Road is currently unopened and unmaintained by the
Municipality. The Municipality has issued annual road occupancy permits to the federal
government and previously Cameco Corporation to permit vehicle access to the east
gate of the Port Granby Waste Management Facility. The balance of the road
allowance south to Lake Ontario is not improved and is not passable to vehicle traffic.
2.4 The leasing of Nichols Road South to the federal government will permit the federal
government and its contractors to continue to access the east gate of the Port Granby
Waste Management Facility (for non-waste carrying vehicles only). It will also permit
access to a parking lot for employees and contractors proposed to be constructed on
federal lands east of the road. The leasing of the balance of the road allowance
southward to Lake Ontario was also deemed necessary to facilitate the excavation of
waste from the East Gorge. The gorge is characterized by challenging topography,
especially on its east slope where its abuts the road allowance. The need to use
Nichols Road South to manoeuver equipment will be an operational decision by the
federal government and its contractor during waste excavation activities.
2.5 The second roads agreement provides for further agreements between the Municipality
and the federal government to address additional issues related to Nichols Road South.
One agreement would address the works required to permit Nichols Road South to be
used as an access to the existing waste site and adjacent lands. It is anticipated that
these works (identified as the 'Nichols Road South Works') will involve hardening of the
road surface to minimize the creation of dust and to accommodate large equipment. An
additional agreement, if required, will ensure that Nichols Road South is restored to a
condition satisfactory to the Municipality prior to the termination of the Lease.
2.6 Similar to the first roads agreement related to Elliott Road, the second agreement
includes the following provisions:
17. After notice is given by Canada stating that it requires the right to occupy Nichols
Road South in order to have access to the Port Granby Waste Management
Facility and adjacent lands owned by Canada, Council shall pass a by-law
pursuant to section 35 of the Municipal Act, 2001 to remove the public right of
passage over Nichols Road South for the duration of the Nichols Road South
Lease.
18. Following the passage of the by-law referred to in section 17, the Municipality
shall lease Nichols Road South to Canada on the terms and conditions set out in
Schedule 9." (Note: Schedule 9 is the Nichols Road South Lease.)
REPORT NO.: PSD-042-14 PAGE 4
2.7 Canada gave notice that it requires the right to occupy Nichols Road South on June 6,
2014.
2.8 Section 35 of the Municipal Act is applicable in this situation since Nichols Road South
will be re-opened as a public road once the lease has terminated at the end of Phase 2
of the Port Granby Project.
2.9 The lease permits Canada to install a lockable security gate on Nichols Road South at
its intersection with Lakeshore Road. Canada is also required to provide keys to the
lock to the Engineering Services Department and the Fire Emergency Services
Department.
3. CONCURRENCE
3.1 This Report has been reviewed by the Municipal Solicitor and the Director of
Engineering Services who concur with the recommendations.
4. CONCLUSION
4.1 The roads agreement dealing with the Nichols Road South Lease has been signed by
both the Municipality and the Government of Canada. Canada has provided notice to
the Municipality that it requires the right to occupy Nichols Road South. It is therefore
appropriate to pass the by-law to temporarily restrict the public's use of Nichols Road
South for the duration of the construction phase of the Port Granby Project and to sign
the Nichols Road South Lease.
CONFORMITY WITH STRATEGIC PLAN
The recommendations contained in this report conform to the general intent of the following
priorities of the Strategic Plan:
X Promoting economic development
X Maintaining financial stability
Connecting Clarington
Promoting green initiatives
X Investing in infrastructure
Showcasing our community
Not in conformity with Strategic Plan
Staff Contact: Janice Szwarz, Principal Planner
Attachments:
Attachment 1 — By-Law
Attachment 2 — Nichols Road South Lease
List of interested parties to be notified of Council's decision:
Craig Hebert
Gerry Mahoney
Attachment 1
To Report PSD-042-14
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW 2014-
1
a by-law to temporarily restrict the use of Nichols Road
I
WHEREAS on November 29, 2011, the Canadian Nuclear Safety Commission issued a
Waste Nuclear Substance Licence to Atomic Energy of Canada Limited to permit the
'Port Granby Long-Term Low-Level Radioactive Waste Management Project' (the
'Project')to proceed;
AND WHEREAS Her Majesty the Queen in Right of Canada as represented by the
Minister of Natural Resources ("Canada") and The Corporation of the Municipality of
Clarington (the "Municipality") entered into an "Agreement for the Construction,
Maintenance and Use of Lakeshore Road and Nichols Road South for the Port Granby
Project'dated April 7, 2014 (the'Roads Agreement')in order to address Municipal road
issues related to the construction of the Project;
AND WHEREAS under the Roads Agreement the Municipality has agreed to
temporarily remove the public right of passage over a portion of Nichols Road to allow
Canada to use such portion of Nichols Road in order to carry out the Project;
AND WHEREAS Section 35 of the Municipal Act, 2001 provides that a municipality may
pass by-laws removing or restricting the common law right of passage by the public
over a highway;
NOW THEREFORE the Council of The Corporation of the Municipality of Clarington
enacts as follows:
1. In this by-law,
"Nichols Road South Lease" means the lease dated July 7, 2014 granted by the
Municipality to Canada to permit Canada to use Nichols Road South in order to
carry out the Project;and
"Nichols Road South" means the portion of Nichols Road from its intersection
with Lakeshore Road southward to its terminus at Lake Ontario.
2. Subject to sections 3 and 4 of this by-law, the public right of passage is hereby
removed over Nichols Road South for the duration of the Nichols Road South
Lease.
3. During the term of the Nichols Road South Lease, Canada may exclusively use
Nichols Road South for the purposes of the Port Granby Project as outlined in
the Nichols Road South Lease.
4. Emergency vehicles shall be permitted to use Nichols Road South at all times.
5. This by-law shall be effective on the date that it is passed.
6. This by-law shall remain in effect until the Nichols Road South Lease has
terminated.
By-law passed in open session this 7th day of July, 2014.
Adrian Foster, Mayor
Anne Greentree, Municipal Clerk
This is Schedule "A" to By-law 2014- ,
passed this day of , 2014 A.D.
W
iI I
nadian Pacific Rail Y
1 I �
Iii di n National Ra11waY < .
O
Cana i
ii JI
Q
O I Z
o'
W
¢ I
ZU..
;�
gi
0 t
I
CO)
,V
Lake Ontario
i
Adrian Foster,Mayor C.Anne Greentree,Municipal Clerk
s' g N
Newcastle r Newtonville
J
i
`3 $
Subject Road
CLARKE Lake Ontario
SCHEDULE 2B
Attachment 2
To Report PSD-042-14
NICHOLS ROAD SOUTH LEASE
BETWEEN:
THE CORPORATION OF THE
MUNICIPALITY OF CLARINGTON
- and -
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA as represented by the
Minister of Natural Resources
WHEREAS Canada and the Municipality entered into an "Agreement for the Construction,
Maintenance and Use of Lakeshore Road and Nichols Road South", dated April 25, 2014, in.
which they agreed to enter into this Lease.
NOW THEREFORE the Municipality and Canada agree as follows:
INTERPRETATION
1. Any words or expressions used in this Lease, including its recitals, have the same
meanings given to them in section 2.
2. In this Lease,
"Canada" means Her Majesty the Queen in Right of Canada as represented by the
Minister of Natural Resources including, where appropriate, her agents,
consultants, contractors and employees.
"Director" means the Municipality's Director of Engineering Services or a
designate.
"Historic Low-Level Radioactive Waste" means the Low-Level Radioactive
Waste located within the Municipality of Clarington for which the original
producer cannot reasonably be held responsible and for which Canada has
accepted responsibility.
"Low-Level Radioactive Waste" means any of the radioactive waste products
resulting from the processing of radioactive materials in the Town of Port Hope
by Eldorado now situate in the Municipality of Clarington, including, but not
limited to, chemical process wastes, contaminated industrial trash, building
materials and industrial equipment employed in the processing activity as well as
any soils that have become contaminated with radioactivity, all of which, for
Page 1 of 5
regulatory purposes, do not fall into the category of high-level radioactive wastes,
and, without limiting the generality of the foregoing, includes all of the Low-
Level Radioactive Waste and the marginally contaminated soils at the Port
Granby Waste Management Facility and Historic Low-Level Radioactive Waste.
"Municipality" means the Corporation of the Municipality of Clarington
including, where appropriate, its agents, consultants, contractors and employees.
"Nichols Road South" means the portion of Nichols Road from its intersection
with Lakeshore Road southward to its terminus at Lake Ontario.
"Port Granby Waste Management Facility" means the 18 hectare radioactive
waste management property located in the Municipality of Clarington and
occupying parts of Lots 2 and 3, Broken Front Concession A in the former
Township of Clarke,which parts are between Lakeshore Road and Lake Ontario.
"Road Waste" means the Historic Low-Level Radioactive Waste located in the
road allowances within the Municipality of Clarington that has been identified by
surveys undertaken by Canada.
"Lakeshore Road Agreement" means the agreement referenced in the recital to
this Lease;
"Term" means the term of this Lease as set out in sections 6 and 7 of this Lease;
"Travelled Portion of Nichols Road South" means the section of Nichols Road
South from its intersection with Lakeshore Road southward to the east gate of the
Port Granby Waste Management Facility.
3. Sections 2, 3, 4 and 6 of the Lakeshore Road Agreement apply to this Lease with
necessary modifications.
4. No provision of this Lease shall be deemed to be an amendment of the Lakeshore Road
Agreement or to constitute a waiver by the Municipality or by Canada of any of their
respective rights and obligations under the Lakeshore Road Agreement. If there is any
conflict between the provisions of this Lease and the Lakeshore Road Agreement, to the
extent of such conflict the provisions of the Lakeshore Road Agreement shall prevail.
RENT
5. In consideration of Canada paying to the Municipality the sum of$2.00 and other good
and valuable consideration, the receipt of which is acknowledged by the Municipality,the
Municipality leases Nichols Road South to Canada.
Page 2 of 5
TERM
6. The term of this Lease shall commence on the day that the last party to it signs it or the
day on which the by-law passed in accordance with section 20 of the Lakeshore Road
Agreement comes into effect,whichever occurs last.
7. This Lease shall terminate 60 days after Canada has notified the Municipality that it no
longer requires Nichols Road South for its purposes or 10 years from its commencement,
whichever occurs first.
USE
8. Canada may exclusively use the Travelled Portion of Nichols Road South for the purpose
of providing access for vehicles and equipment to and from Nichols Road South to the
Port Granby Waste Management Facility and adjacent lands owned by Canada to the
east.
9. Canada may exclusively use the portion of Nichols Road South located south of the
Travelled Portion of Nichols Road South for the purpose of accessing and excavating
waste in the East Gorge area of the Port Granby Waste Management Facility.
10. Notwithstanding sections 8 and 9 of this Lease, Canada shall permit all emergency
vehicles to use Nichols Road South at their own risk.
11. Canada shall not use or permit the Travelled Portion of Nichols Road South to be used by
any person as a road for vehicles or construction equipment that may have been used in
transporting Low Level Radioactive Waste or vehicles or construction equipment that
may have been contaminated by Low-Level Radioactive Waste unless they have been
confirmed to be free of Waste such that no license under the Nuclear Safety and Control
Act would be required to move, use or dispose of the vehicle.
12. Notwithstanding section 11, Canada may use the Travelled Portion of Nichols Road
South for the purpose of transporting Road Waste to the Port Granby Waste Management
Facility.
13. Canada may install either a farm fence or a chain link fence which is satisfactory to the
Director on Nichols Road South at its intersection with Lakeshore Road with a lockable
security gate. If Canada makes such installation, it shall provide keys to the lock to the
Director and the Municipality's Emergency Services Department.
Page 3 of 5
QUIET ENJOYMENT
14. Provided that Canada is not in default-of this Lease, Canada may peaceably possess and
enjoy Nichols Road South for the Term, without any interruption or disturbance from the
Municipality, or any other person or persons lawfully claiming by, from or under the
Municipality.
NLA LNTENANCE AND REPAIR
15. During the Term, Canada shall monitor, maintain and repair Nichols Road South to the
standard required under the Municipal Act, 2001 for a Class 5 public highway.
INSPECTION
16. Without limiting any other right which the Municipality may have pursuant to this Lease,
in law or in equity,the Municipality shall have the right to enter onto Nichols Road South
to examine its condition after providing Canada with at least 48 hours written notice.
17. The exercise by the Municipality of its right to enter onto Nichols Road South shall not
constitute a breach of Canada's quiet enjoyment of Nichols Road South, or a constructive
or actual eviction, or a re-entry or forfeiture (except where otherwise expressed by the
Municipality by notice given to Canada
18. The Municipality agrees to comply with any reasonable health and safety rules required
by Canada during any entry and inspection under section 16.
19. The Municipality shall indemnify Canada for any injury, loss, costs or damages
whatsoever, howsoever caused, whether direct or indirect resulting from the exercise of
the rights under section 16 by the Municipality or anyone for whom the Municipality is in
law responsible.
GENERAL
20. Nothing in this Lease is intended to establish a partnership or a joint venture between the
Municipality and Canada, nor shall it be construed to do so.
21. Canada acknowledges that the Municipality is the owner of Nichols Road South and that
Canada shall have.no right or claim thereto, other than as a tenant under this Lease.
Page 4 of 5
IN WITNESS WHEREOF the Municipality and Canada have signed this Lease.
THE CORPORATION OF THE
MUNICIPALITY OF CLARINGTON
Adrian Foster, Mayor
Anne Greentree, Municipal Clerk
July 7 , 2014
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA as represented by the
Minister of Natural Resources
Tambrae Knapp, Senior Director
Human Resources and Workplace Management Division
2014
Page 5 of 5