REPORT CENTRAL LAKE ONTARIO CONSERVATION AUTHORITY

Transcription

1 REPORT CENTRAL LAKE ONTARIO CONSERVATION AUTHORITY DATE: May 13, 2013 FILE: O GH IMS: RPRG4186 S.R.: APPROVED BY C.A.O. MEMO TO: FROM: SUBJECT: Chair and Members, CLOCA Board of Directors Chris Darling, Director, Development Review & Regulation Renewal of Application to Place Fill 618 Columbus Road East, Oshawa The purpose of this report is to recommend approval of a permit application to allow the placement of fill at 618 Columbus Road East, Oshawa. Background At the March 7, 2011 meeting of the Authority Board, the following motion was passed: THAT all future permit applications submitted for 618 Columbus Road East, Oshawa be required to come before the CLOCA Board of Directors for review prior to issuance. Mr. Kassouf (the property owner) and Hard-Co Construction have jointly had permission since 2007 to allow the placement of fill on the subject site. Staff reports were presented to the Board in April and May 2010, March, 2011 and March and October 2012, providing detailed information regarding the permit to place fill. Staff Report provided detailed information on the parameters in which the Authority Board can consider when reviewing permit applications and is attached (Attachment 1). The last permit issued by CLOCA expired March 26, As a result, Hard-Co has applied for another permit to continue the filling operation on the subject site. The subject site is located in the north/east quadrant of Ritson Rd. and Columbus Rd. (see attachment 1). The subject property is approximately 30 hectares (75 acres) in area and a dwelling is located in the southern portion of the site and a small tributary of the Oshawa Creek also traverses the site. The Oshawa Creek valley and associated wetland features are located to the west of the subject property. Due to the small on-site tributary and the proximity to the Oshawa Creek valley and wetlands, the majority of the site (approximately 80%) is regulated by Ont. Regulation 42/06, CLOCA s Regulation of Development, Interference with Wetlands and Alterations to Shorelines and Watercourses (refer to attachment 1 location sketch). The central portion of the site is regulated by the City of Oshawa, not CLOCA. The City of Oshawa issued a one year site alteration permit on August 30, 2012 for the placement of fill on the central portion of the property. From 2007 through to March 2012 the majority of fill placement occurred within the southern portion of the subject site - phase 1 area (refer to attachment 1). In 2012, the filling activity in the southern portion of the subject site (phase 1 area) was completed and the area was seeded and stabilized. The permit issued in March 2012 for the subject site permitted the placement of approximately 50,000m3 of fill on the northern portion of the subject site for the one year time period. The information submitted for the 2012 permit indicated that approximately 20,000m3-40,000m3 of fill is placed on the subject site annually and the estimated remaining fill to be placed in the northern portion of the site was 99, 664m3. cont d..2

2 FILE: O GH IMS: RPRG4186 Page 2 S.R.: May 13, 2013 Submitted soil reports indicate that all fill material received originates from sites within Durham Region and that the majority of the fill is from construction activities related to municipal infrastructure works. Summary of Current Permit Application The current permit application is requesting permission for the placement of 72,000m3 for the period April 2013 through to April In addition, approximately 30,000m3 of fill will be removed from the temporary on site access route and moved to the northern phase. The applicant retained D.G. Biddle Ltd. to undertake a detailed grading plans, cross sections, drainage plans and post elevation drawings for the northern portion. The submitted cross sections indicate that the completed grades would be generally in the range of 1-2m higher than existing grades with fill establishing new side slopes with a slope no steeper than 3:1. Attachment 2 is a copy of cross sections of the northern portion the subject site. In accordance with Ontario Regulation 42/06, CLOCA may grant permission for development in or on areas regulated by the Authority, if in its opinion the control of flooding, erosion, dynamic beaches, pollution or the conservation of land will not be affected by the development. Compliance to Ontario Regulation 42/06 Staff have reviewed the permit application and supporting plans and are of the opinion that it meets the tests under CLCOA s Regulation as follows: Control of Flooding: Control of flooding generally refers to ensuring that development will not be subject to or will not result in an increase of flood hazard resulting from loss of flood capacity, increase in flood flows and increase in flood depths that would put people and property at risk. There is no filling activity permitted within or adjacent to a floodplain. All fill material is subject to a minimum 30m setback from all watercourses. The permit includes post elevation plans to ensure that all original drainage patterns will be maintained. CLOCA staff have completed a number of site inspections and are satisfied that the final grading in the southern portion maintain drainage patterns to that of which existed prior to filling activity. In addition, D.G. Biddle and Associates have confirmed that the proposed ultimate fill volumes will not alter drainage patterns or run-off volumes on adjacent properties and no adverse impact to the downsteam receiving drainage system is anticipated. Control of Erosion: Control of erosion generally refers to ensuring that development will not be subject to or will not result in erosion hazard that will place people or property at risk and ensuring that development will not result in release of sediment as a result of erosion. Erosion hazards relate to erosion potential of river and stream banks, as well as erosion or potential slope stability issues related to valley walls. The submitted plans establish stable grades such that all out-slopes are at a minimum of 3:1, and seeded immediately after final grading occurs. Sediment and erosion controls have been installed, and will be monitored and maintained for the duration of the project. Pollution: Pollution is defined as any deleterious physical substance or other contaminant that has the potential to be generated by development. In accordance with the Authority s Large Fill Policy, the permit will include conditions requiring that prior to any placement of fill material, that a soil report be submitted for each originating site from which soil is being imported. Prior to any filling activity, the reports will have to demonstrate that the fill material is inert and meets Table 1 or 2 of the Environmental Protection Act Table of Site Conditions Standards for agricultural and residential properties. cont d..3

3 FILE: O GH IMS: RPRG4186 Page 3 S.R.: May 13, 2013 Conservation of land: Conservation of land is defined as the protection, management, or restoration of lands within the watershed ecosystem for the purpose of maintaining or enhancing the natural features and hydrologic and ecological functions within the watershed. A small portion of a ELC wetland is located at the northern property boundary. The placement of is setback 15m from the wetland boundary. The only other natural heritage features in proximity to the subject site are two tributaries of the Oshawa Creek and some wetland area associated with the Oshawa Creek. The fill activity is setback a minimum 30 m. from the small intermittent tributary located along the easterly portion of the subject site. The second tributary and associated wetland located to the west of the subject property is buffered approximately 70-75m from the fill activity. The established setbacks ensure that there will not be adverse impact on the tributaries and wetlands. In addition, the applicant has agreed to establish a tree planting program in consultation with CLOCA for the area subject to the fill activity. Tree planting will enhance the natural heritage system associated with the Oshawa Creek. Compliance to CLOCA s Large Fill Policy In accordance with the Large Fill Policy the following information has been submitted with the application: CLOCA Large Fill Policy Provision Submission of Plan of survey of the subject property and the specific location(s) and timing of fill staging on the subject property where placement of fill is proposed. Slopes shall not exceed a 3 (horizontal): 1 (vertical) gradient total fill quantity must be shown on the plans in cubic metres Submission of Sediment and Erosion Control Plans Submission of Pre and Post Drainage Plans and confirmation that the placement of fill will not alter drainage patterns and volumes in such a way to have an adverse effect on flooding and erosion of downstream or upstream properties Setback minimum 15m from watercourses and wetlands. Submission of Soil Management Plan(s) Compliance Plan of Survey illustrating existing elevations has been submitted with previous permit application. Plans including cross sections of proposed elevations have been completed by D.G. Biddle and Associates Ltd. Information on the phasing of the placement of fill has been submitted. Submitted plans provide that slopes will be a minimum 3:1. Grading and Drainage Plan has been submitted indicating the use of Enviro Fence for the purpose of addressing sediment and erosion control. D.G Biddle and Associates have submitted Pre and Post Drainage Plans confirming that the placement of fill will not alter drainage patterns and volumes in such a way to have an adverse effect on flooding and erosion of downstream or upstream properties The placement of fill meets the minimum 15m setback. Setbacks have been identified and staked on site. Representative baseline sampling of 618 Columbus Road has been completed. The site is not identified as a significant groundwater recharge area. Fill source sites are not known at this time. As a result, the requirement for a Soil Management Plan will be a condition of approval. Each source site will require the submission of a Soil Management Plan that provides: A descriptions of the address(s) and property owners of the source sites (origin) of all fill material. A description of the fill source site(s), its history, past and present uses of the land including any processes involved in its generation and a completed soil quality questionnaire to identify if there are any potential concerns with fill quality and possible contamination. Documentation of soil quality from the source site verify that the fill material is inert based on distributed samples across the site with a focus in areas of highest risk and a detailed description of the sampling procedure and rationale. cont d..4

4 FILE: O GH IMS: RPRG4186 Page 4 S.R.: May 13, 2013 Identification of a qualified on-site manager for the purpose of monitoring of on- site activities, confirming working state of erosion and sedimentation control measures and maintenance of site drainage and record keeping of incoming fill material. Qualifications of the site manager shall be reflective of the expertise required for each receiving site based on considerations such as fill volumes and site characteristics. A contingency plan outlining actions that are to be taken in the event that sampling results or other information identifies concerns with soil quality or site drainage. Restoration details (i.e. detail site stabilization measures such as topsoil, seed, sod, hydroseed and associated timing, etc.). Written permission from the Authority consenting to a large fill operation will only be granted to a maximum of 1 year. A new application for development can be submitted. The new application will be subject to the requirements, stipulations and fees of this policy. Conditions of Approval: Submission of post elevation and drainage plan/report prepared by a certified Ontario Land Surveyor and confirmed by a QP that final elevations and drainage patterns are in accordance with the approved plans and will not result in increased or new drainage off-site that will pose a risk to human health, property or the environment; A specified limit on the volume of fill and depths; Adherence to the requirements of submitted Soil Management Plan(s). Requirement for on-going testing of fill at the receiving site to ensure that the fill material is inert. That a qualified on-site manager monitor the receiving site on a monthly basis to ensure maintenance of drainage patterns and that all erosion and sediment control measures are working; Provision of access to the receiving site to CLOCA staff and if applicable, the peer review consultant to undertake independent sampling; Hard-Co has indicated that their Operations Manager will be responsible for on-site monitoring of fill activity. A condition of the permit will specify monitoring requirements. Information relating to a Contingency Plan has been submitted indicating the actions that will be taken in the event soil sampling or other information identifies concerns with soil quality. Restoration provisions providing for seeding have been submitted previously. The Oshawa Creek Watershed Plan illustrates the subject site as an area identified for natural cover regeneration/restoration. As a result, as a condition of the permit, an enhanced restoration plan will be required to be developed in cooperation with CLOCAs natural heritage staff. The restoration plan will include progressive vegetation plantings ultimately establishing the area subject to placement of fill as part of the functional Natural Heritage System. The applicant has applied for a 3 year time limit for the placement of fill. It has been CLOCAs practice to issue permits for a maximum 1 year time limit. At the time of approval of the Large Fill Policy, Ont. Regulation 42/06 restricted the issuance of a permit to under 2 years. However, Ontario Regulation 42/96 has recently been amended by the province allowing for the issuance of permits up to a maximum time period of 5 years. This extended time frame addresses projects that cannot reasonably be expected to be completed within 2 years. Given the maximum fill proposed and the expected fill quantities per year, it is reasonable that this fill site can be completed within 3 years. Also, given that the majority of fill received at the site originates from municipal projects and proven cooperation of the applicant to work with CLOCA staff, there is no additional risk to the issuance of a permit for a time period beyond 1 year. As a result, staff can support the application for a timeframe of 3 years. All conditions of approval referenced in the Large Fill Policy will be applied to the permit.

5 FILE: O GH IMS: RPRG4186 Page 5 S.R.: May 13, 2013 and Submission of fill records by a designated on-site manager identifying disposal location. On a daily basis, the on-site manager shall confirm all incoming fill is from an approved originating site, and record the location on the site where filling activities have occurred. Tracking and recording placement of fill on a daily basis through the development of a locational grid tracking system for the property. Daily logs for fill received, including: Date and Daily total # of trucks entering the site; That the site be gated and sign prohibiting access to unauthorized personal/trucks. Payment of applicable fees 50% of fees have been paid with the application and the remaining fees will be paid at the end of September 2013 as per conditions of approval. Municipal Jurisdiction related to Noise and Dust As referenced in previous staff reports (Attachment 3), noise and dust impacts related to the fill operation has been raised as an issue in the past and has resulted in much discussion by the Authority Board. Noise and dust issues are outside of the scope and mandate of CLOCAs Regulation and the Board has been informed that these matters ought to be addressed through municipal noise and/or nuisance by-laws. Generally, the most effective tool to address noise and dust from a fill operation would be through a municipal site alteration by-law. Municipalities are restricted in the application of site alteration by-laws through Section 142(8) of the Municipal Act, which states that such by-laws have no effect where Conservation Authorities Act regulations are applicable. Section 142 (8) of the Act specifically states: By-law ceases to have effect (8) If a regulation is made under section 28 of the Conservation Authorities Act respecting the placing or dumping of fill, removal of topsoil or alteration of the grade of land in any area of the municipality, a by-law passed under this section is of no effect in respect of that area. 2001, c. 25, s. 142 (8). [emphasis added] The restriction in subsection 142(8) of the Act only applies to render ineffective a municipal site alteration bylaw. It does not apply to restrict the application of other municipal by-laws which may address noise, dust and other issues. In this regard, CLOCA s permit would address all matters under the scope of the CA Act and Regulations related to: Control of Flooding Erosion Dynamic beaches Pollution Conservation of lands.

6 FILE: O GH IMS: RPRG4186 Page 6 S.R.: May 13, 2013 The City s by-laws (other than its Site Alteration By-law) would be in effect for the entire site as it relates to matters outside of the above five areas. This will allow the City to effectively address matters such as: Dust Hours of Construction Noise Truck traffic Truck Haul Route Driveway Access Mud tracking There remains the risk of perceived conflict which can be mitigated by expressing in any permit issued by CLOCA for the proposed fill operation that, save only for the City s Site Alteration By-law, the permit does not restrict municipal regulation of the aforementioned matters in respect of the fill operation. Conclusion CLOCA staff has consulted with staff of the City of Oshawa on the proposed permit application. The application to permit the continued placement of fill on this subject site meets the five tests under the CA Act and complies with CLOCA s Large Fill Policy, with the exception of the proposed timeframe of the permit. The plans illustrating the ultimate remaining fill volumes and the estimated annual incoming fill volumes provide a clear indication that the fill operation will be completed within 3 years. During the duration of the permit, CLOCA will continue to monitor compliance and coordinate efforts with the City of Oshawa. Any noncompliance activity can be addressed through the issuance of a violation and subsequent court action if not resolved. The City has confirmed that they have legislative tools available to address the noise and dust issues that have been previously raised. As a result, staff recommends the issuance of a permit for a three year period subject to a number of conditions. RECOMMENDATION: THAT Staff Report # be received for information; and, THAT the CLOCA Board of Directors approve the application for the placement of fill at 618 Columbus Road East, Oshawa for time period of May 23, 2013 through to May 23, 2016, subject to the following conditions: 1. This permit applies only to those activities and lands regulated under Ontario Regulation 42/06 related to the control of flooding, erosion, pollution and the conservation of land as administered by the Central Lake Ontario Conservation Authority. 2. This permit does not absolve the permit holder of the responsibility of obtaining necessary permissions from applicable federal, provincial ministries/agencies or the City of Oshawa. In this regard the permit holder is subject to the City s by-laws (other than its Site Alteration By-law) respecting dust, hours of construction, noise, truck traffic, truck haul route, driveway access and mud tracking. 3. Adherence to the submitted elevation and grading plans, fill volumes and phasing; 4. Prior to the placement of fill from each source site, a Soil management Plan be submitted confirming that the fill meets Table 1 or 2 of the the Environmental Protection Act Table of Site Conditions Standards. The soil report(s) must be based on distributed samples across the site with a focus in areas of highest risk. A detailed description of the sampling procedure and rationale shall be provided. At a minimum all sampling should be carried out by a Qualified Person and be accompanied by a chain of custody form and to be submitted to a laboratory within 24 hours of sampling. All samples must be submitted to a laboratory that is accredited by an internationally recognized accreditation body, such as the Standards Council of Canada or Canadian Association for Laboratory Accreditation;

7 FILE: O GH IMS: RPRG4186 Page 7 S.R.: May 13, Annual testing of fill material at the receiving site to ensure that the fill material is inert. The sampling area shall be determined in consultation with CLOCA staff. At a minimum all sampling should be accompanied by a chain of custody form and to be submitted to a laboratory within 24 hours of sampling. All samples must be submitted to a laboratory that is accredited by an internationally recognized accreditation body, such as the Standards Council of Canada or Canadian Association for Laboratory Accreditation; 6. Implementation of sediment and erosion controls; 7. Submission of monthly truck trip tickets/total verifying quantities; 8. Prior to completion of placement of fill, the permit holder shall re-grade the temporary access route to the satisfaction of CLOCA; 9. Upon final grading re-vegetation immediately; 10. Submission of elevation surveys to confirm quantities and location on an annual basis; 11. Submission of a post elevation and drainage plan/report prepared by a certified Ontario Land Surveyor, on an annual basis, confirmed by a QP that final elevations and drainage patterns are in accordance with the approved plans and will not result in increased or new drainage off-site that will pose a risk to human health, property or the environment; 12. Requirement for a qualified on-site manager monitor the receiving site on a monthly basis to ensure maintenance of drainage patterns and that all erosion and sediment control measures are working and provide reports to CLOCA advising of the results of the on-site monitoring; 13. Acknowledgment of the provision of access to the receiving site to CLOCA staff; 14. Submission of fill records by a designated on-site manager identifying disposal location. On a daily basis, the on-site manager shall confirm all incoming fill is from an approved originating site, and record the location on the site where filling activities have occurred. The location of the loads will be tracked and recorded on a daily basis through the development of a locational grid tracking system for the property. Records will be retained and made available to CLOCA on a monthly basis and include: o A daily summary log to be maintained for loads shipped to the site, including: Date; o Daily total # of trucks entering the site; o The location from where the fill was loaded into each truck; and 15. The site be gated and sign prohibiting access to unauthorized personal/trucks; 16. Agreement to implement contingency plan measures if required; 17. Adherence to truck movement areas on the subject area to limit soil compaction; 18. Submission of a Natural Heritage Restoration Plan, prepared in consultation with CLOCA, for the areas that have been or are currently subject to a permit for the placement of fill. That the Natural Heritage Restoration Plan be submitted to CLOCA no later than October 2013; 19. Implementation of the Natural Heritage Restoration Plan as soon as weather permits following the completion of the fill placement phases; and 20. Requirement that the applicant pay all required permit fees prior to September 30, CD/ms Attach.

8 CENTRAL LAKE ONTARIO CONSERVATION AUTHORITY DATE: October 9, 2012 FILE: RPRG3537; O GH S.R.: APPROVED BY C.A.O. MEMO TO: FROM: SUBJECT: Chair and Members, CLOCA Board of Directors Chris Darling, Director, Development Review & Regulation Placement of Fill 618 Columbus Road East, Oshawa At the September 25, 2012 Board of Director s meeting, delegations were heard from Mr. Alex Alexander and Mr. Larry Harding (Hard-Co Construction) regarding a permitted large fill site at 618 Columbus Road, Oshawa. Following the delegations and discussion, it was agreed that staff would bring a report to the October 2012 Board of Director s meeting to update and inform Members on the status of this site. Generally the following issues were discussed as points requiring follow-up from staff: Background Background information related to description of site and regulation boundaries; Jurisdictional responsibilities of CLOCA and the City of Oshawa as it relates to fill sites; How matters within CLOCA s responsibility have been addressed; Status of the fill operation on the subject site; Options the Board has with respect to fill permission for the subject site; and Solutions to issues raised at the Board meeting. The subject site is located in the northeast quadrant of Ritson Road and Columbus Road (see attachment 1). The subject property is owned by Marcel Kassouf, and is approximately 30 hectares (75 acres) in total area. Other than the house and yard, and a small tributary of the Oshawa Creek (and farm pond), the property has been worked for agricultural crop production in the past. The Oshawa Creek valley and associated wetland features are located to the west of the subject property. Because of the on-site tributary and the proximity to the Oshawa Creek valley and wetlands, the majority of the site (approximately 80%) is regulated by Regulation 42/06, CLOCA s Regulation of Development, Interference with Wetlands and Alterations to Shorelines and Watercourses (refer to attachment 1). The central portion of the site is regulated by the City of Oshawa, not CLOCA. The City of Oshawa re-issued a site alteration permit on August 30, 2012 for the placement of fill on the central portion of the property. The Owner, Mr. Kassouf and Hard-Co Construction have jointly had permission since 2007 to allow the placement of fill on the subject site. Staff reports were presented to the Board in April and May 2010, March, 2011 and March 2012, providing detailed information regarding the permit to place fill. The current permit issued in April 2012, allows the placement of 50,000m3 of fill on the northern portion of the site subject to conditions. Since 2007, approximately 126,000m3 of fill has been placed on the entire site. Jurisdictional Responsibilities of CLOCA and the City of Oshawa The control of fill and grading is a responsibility shared among many agencies. There is no single provincial legislation or municipal regulation that applies directly to the definition, removal, transportation, placement and grading of fill in the context of addressing the total potential impacts associated with this activity. Cont d.2

9 FILE: RPRG3537; O GH Page 2 S.R.: October 9, 2012 CLOCA is responsible for the administration of Ontario Regulation 42/06. Through this Regulation, CLOCA is empowered to regulate development and activities in and adjacent to river or stream valleys, Lake Ontario and large inland lakes shorelines, watercourses, hazardous lands and wetlands. CLOCA also regulates the straightening, changing, diverting or interfering in any way with the existing channel of a river, creek, stream or for the changing or interfering in any with a wetland. These areas are regulated to ensure that development does not worsen existing erosion and flooding hazards, that new hazards are not created, that new development is not at risk from a natural hazard and that development does not result in a negative impact on natural features and ecological functions. Specifically Ontario Regulation 42/06 allows CLOCA to regulate development which includes the placing, dumping, or removal of any material. CLOCA has the power to prohibit, regulate, or require permission of development if, in the opinion of the authority, the control of flooding, erosion, dynamic beaches, pollution or the conservation of land may be affected by the development. Conservation Authorities are obligated to make decisions on permit applications based upon their legislative mandate as outlined in the Conservation Authorities Act and Ontario Regulation 42/06. When making decisions on an application for permission under Ontario Regulation 42/06, CLOCA is bound by the parameters set out in the Regulation (control of flooding, erosion, dynamic beaches, pollution or the conservation of land) and the decision must be supportable by those factors. The Authority cannot make decisions on an arbitrary or out of scope basis. Public concerns can include a variety of environmental and social issues, many of which are beyond the scope of CLOCA s regulatory authority. One of the challenges with reviewing an application for large-scale fill sites is that there is no legislative requirement for a formal public meeting or input nor can the permit include conditions to address issues outside the scope of the legislation. Conversely, municipalities have a broad mandate and may pass by-laws respecting, among other matters, the following matters: Economic, social and environmental well-being of the municipality. Health, safety and well-being of persons. Protection of persons and property, including consumer protection. In this regard the City of Oshawa has enacted the following by-laws that can regulate fill operations: site alteration by-law (lot grading, drainage, and erosion control) noise by-law; vehicle idling by-law; and traffic by-laws (restrict loads for specific time periods & haul routes) Municipalities are however, restricted in the application of site alteration by-laws through Section 142(8) of the Municipal Act, which states that such by-laws have no effect where Conservation Authorities Act regulations are applicable. Section 142 of the Act is included as Appendix 1. However, Section 142(8) specifically states: By-law ceases to have effect (8) If a regulation is made under section 28 of the Conservation Authorities Act respecting the placing or dumping of fill, removal of topsoil or alteration of the grade of land in any area of the municipality, a by-law passed under this section is of no effect in respect of that area. 2001, c. 25, s. 142 (8). Provided a fill operation is located within areas that are not entirely regulated by a conservation authority, municipalities also have the ability to require public meetings, collect performance guarantees and to enter into agreements with persons proposing large fill sites. Recently the Township of Scugog entered into agreements Cont d.3

10 FILE: RPRG3537; O GH Page 3 S.R.: October 9, 2012 for a large fill site. The agreements cover matters such as truck routing, load restrictions, noise and dust control, road repair and performance guarantees. Review of Compliance to Ontario Regulation 42/06 In accordance with Ontario Regulation 42/06, prior to the issuance of permits for the placement of fill at the subject site, it was demonstrated to the satisfaction of CLOCA that there would not be an adverse impact on the control of flooding, erosion, pollution or the conservation of land. Control of Flooding: Control of flooding generally refers to ensuring that development will not be subject to or will not result in an increase of flood hazard resulting from loss of flood capacity, increase in flood flows and increase in flood depths that would put people and property at risk. There is no filling activity permitted within or adjacent to a floodplain. All fill material is subject to a minimum 30m setback from all watercourses. The permit includes post elevation plans to ensure that all original drainage patterns will be maintained. CLOCA staff have completed a number of site inspections and are satisfied that the final grading in the southern portion maintain drainage patterns to that of which existed prior to filling activity. In addition, Hard-Co. Construction has retained a qualified independent engineer, D.G. Biddle and Associates, who will also review all plans and undertaken a site visit to confirm that the final grades of the southerly portion of the property material maintain drainage patterns to what existed prior to the placement of fill. Control of Erosion: Control of erosion generally refers to ensuring that development will not be subject to or will not result in erosion hazard that will place people or property at risk and ensuring that development will not result in release of sediment as a result of erosion. Erosion hazards relate to erosion potential of river and stream banks, as well as erosion or potential slope stability issues related to valley walls. The subject proposal is required to establish and maintain stable grades such that all out-slopes are at a minimum of 3:1, and seeded immediately after final grading occurs. Sediment and erosion controls have been installed, monitored and maintained for the duration of the project. In addition, Hard-Co. Construction retained a qualified engineer who has reviewed all plans and undertaken a site visit and confirmed that all the sediment and erosion controls are adequate and functioning properly. Pollution: Pollution is defined as any deleterious physical substance or other contaminant that has the potential to be generated by development. In accordance with the Authority s Large Fill Policy, the permit includes conditions requiring that prior to any placement of fill material, that a soil report be submitted for each originating site from which soil is being imported. The reports have been submitted demonstrating that the fill material meets the MOE guidelines for agricultural or residential properties and meet the potable water guidelines. Conservation of land: Conservation of land is defined as the protection, management, or restoration of lands within the watershed ecosystem for the purpose of maintaining or enhancing the natural features and hydrologic and ecological functions within the watershed. The only natural heritage features in proximity to the subject site are two tributaries of the Oshawa Creek and some wetland area associated with the Oshawa Creek. The fill activity is setback a minimum 30m from the small intermittent tributary located along the easterly portion of the subject site. The second tributary and associated wetland located to the west of the subject property is buffered approximately 70-75m from the fill activity. The established setbacks ensure that there will not be adverse impact on the tributaries and wetland. Cont d.4

11 FILE: RPRG3537; O GH Page 4 S.R.: October 9, 2012 Status of the fill Operation To date approximately 125,000m3 of fill has been placed on the subject site. The current permit includes a condition that the southern portion of the subject site is final graded and seeded by the end of May, In September of this year, staff issued a violation to Hard-Co Construction as this condition was not satisfied within the specified timeframe. Since the issuance of the violation, the southern portion of the site has been final graded and seeded to the satisfaction of staff. As a result, the violation will be withdrawn once a report from D.G. Biddle and Associates is received confirming the final grades maintain drainage patterns to what existed prior to the placement of fill. Fill is now being placed in the northern portion of the subject property. The current permit is valid until March 2013 and includes a maximum allowable volume of fill 50,000m3 for the 12 month period. Approximately 20,000m3 of fill is placed on the subject site annually. According to the elevation plans submitted, the total maximum fill volume for the portion of the site that is regulated by CLOCA is 149,000m3 and is detailed as follows (also refer to attachment 2): Location Maximum Fill Status of Placement of Fill Volumes Cell #1 Southern portion 39,000m3 Completed Cell #2 Northern portion 99, 664m3 In progress approximately 75,000m3 placed to date Cell #3 Temporary access 10, 570m3 Maximum fill volume reached To date approximately 125,000m3 of fill has been placed on the entire site. Options the Board has with Respect to Fill Permission In accordance with the Conservation Authorities Act and Ontario Regulation 42/06, the Authority has the following options when considering permissions for fill operations: 1. Grant permission with or without conditions; 2. Refuse to grant permission; and 3. Cancellation of permission. Grant Permission With or Without Conditions As outlined above, the Authority may grant permission if, in its opinion, the control of flooding, erosion, pollution or the conservation of land will not be affected by the development. The Authority has concluded that these matters have all been addressed and as a result permission has been granted with conditions for a fill operation on the subject site since If the permit holder re-applies in March 2013, staff will prepare a report to the Board of Directors providing comment on how the tests under the Regulation have or have not been addressed with a recommendation. Once permission has been granted there is no third party appeal. Refuse to Grant Permission The option to refuse a permit for the subject site could only be considered once the applicant re-applies for a permit when the current permit expires in March The Conservation Authorities Act specifies that permission shall not be refused unless the person requesting the permission has been given the opportunity to require a hearing before the Board of Directors. As outlined above, the Authority s decision on approving or refusing permits must be based on the relevant tests outlined in legislation. During such a hearing only the

12 Cont d.5 FILE: RPRG3537; O GH Page 5 S.R.: October 9, 2012 Authority staff and the applicant can be given the opportunity to present information to the Board. In the case of refusal, written notice of the decision must be provided to the applicant accompanied with instructions on how an appeal may be filed. An appeal is heard by the Mining and Lands Commissioner, as delegated by the Minister of Natural Resources. Cancellation of permission Ontario Regulation 42/06 specifies that the Authority may cancel permission if it is of the opinion that the conditions of the permission have not been met. Before cancelling a permission, the Authority shall give notice of the intent to cancel to the holder of the permission indicating that the permission will be cancelled unless the holder shows cause at a hearing why the permission should be not be cancelled. Staff considers the cancelling of permission a last resort once all other options to achieve compliance with the conditions have been exhausted. It is the preference to work with the permit holder to resolve issues in a co-operative fashion. All conditions of the current permit are being met, as a result, it is recommended that Board not consider cancelling the permit. Solutions to Issues Raised Delegations from Mr. Alexander on the subject site have been heard by the Board of Directors on a number of occasions. Generally the issues raised are related to: noise, fill quality, environmental impacts, flooding and life span of the fill operation. Noise: Noise impacts related to truck noise on the subject site have been discussed at past Board of Directors meetings. Noise is clearly outside of the scope of matters that can be considered under Ontario Regulation 42/06. The permission to place fill now only applies to the northeast portion of the subject site, which is has the greatest separation distance from residential dwellings. The City of Oshawa has a noise by-law for the purpose of prohibit noises likely to disturb the inhabitants of the City of Oshawa. The by-law does not permit fill activity before 7am and after 7pm and holidays and Sundays. The City advises that the fill operation is in compliance with the by-law. The City has the authority under the noise by-law to further limit hours of operation for large fill sites. Fill Quality: As referenced above under the test of pollution, the applicant has submitted soil reports prepared by a qualified person verifying that the fill material received is in compliance with the Board approved Large Fill Policy that requires all fill material to meet Table 1 and 2 standards of the Soil, Ground Water and Sediment Standards for Use Under Part XV.1 of the Environmental Protection Act. To date all fill material received at the subject site has originated from sites within Durham Region. Continued compliance monitoring by CLOCA staff have confirmed that there are no issues with fill quality. Environmental Impacts: As referenced above under the test of conservation of land, the location of fill material is setback sufficiently from natural features to ensure that there will be no adverse impact. Flooding: As referenced above under the test of control of flooding, the permit holder has demonstrated to the satisfaction of Authority staff that drainage off the subject site has been maintained to match pre-fill drainage patterns. Lifespan of Fill Operation: To date approximately 125,000m3 of fill has been placed on the entire site. It is difficult to predict the amount of fill volume to be received at the site on annual basis. As a result, staff will continue to monitor fill volumes on an annual basis to establish clear indication of the lifespan of the operation.

13 FILE: RPRG3537; O GH Page 6 S.R.: October 9, 2012 Conclusion In summary, the issues that have been raised in the past that are within CLOCA s mandate have been addressed. Staff will continue to monitor the site for compliance. The permit holder will also be required to have a qualified person undertake regular monitoring of the site to ensure that erosion and sedimentation control measures are in good repair and functioning. Staff notes that many municipalities have updated their site alteration by-laws and have requirements for fill agreements to address specific matters related large fill sites. Municipalities have also entered into agreements with fill operators and to take securities and performance guarantees. As a result, staff will consult with City of Oshawa to discuss the timing of the update to their site alteration by-law and the potential to require agreements with fill operations. This report was prepared in consultation with staff from the City of Oshawa. RECOMMENDATION: THAT Staff Report # be received for information. CD/bb Attach. s:\reports\2012\sr5081_12

14 Attachment 2