Remediation of the contaminated land

Tannery Lands arguments review # 2

Aerial view of the Tannery Lands

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Issue 8 – Does the Tribunal have the jurisdiction to consider the remediation option in the context of an OPA and/or ZBLA?

OPA = Official Plan Amendment

ZBLA = Zoning Bylaw Amendment

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The Appellant is asking for changes to both the Official Plan (OP) and the Zoning Bylaw (ZBL) before any development of the Tannery lands can take place.

All parties at the Tannery hearing agreed that the site includes contaminants. They were identified in the Phase Two Environmental Site Assessment by XCG Consulting Limited, March 2019. Some contaminant levels exceed the standards by a little, others by a lot.

Before the proposed residential development can be built the Ministry of the Environment Conservation and Parks (MECP) has to approve a Risk Assessment (RA), an approach to cleaning up the site.

After cleanup, a “Qualified Person” or “Qualified Person in Risk Assessments” must sign a Record of Site Condition (RSC) to say the cleanup work has been successfully completed.

The Appellant claims that “the remediation methods identified by XCG are anticipated to meet the requirements of the Province to obtain a RSC, while minimizing the amount of soil to be removed from the Property, which reduces off-site soil transfers and associated carbon emissions as well as supporting the financial feasibility of the remediation. These approaches are a combination of capping, selective excavation with replacement of contaminated soils with improved soils followed by capping; and the full excavation of contaminated soils and replacement with acceptable soils not requiring capping.” (para. 233)

The Appellant argues that their conceptual remediation approach has already been through the necessary reviews and that the City will have a Holding Symbol to prevent any construction until after the Appellant has met the municipal and provincial cleanup requirements.

The timing of the OP and ZBL application was one of the issues at the hearing.

The Appellant argues that they are “seeking planning approvals on a conditional basis, with remediation subject to approval by the Province. There are no requirements in the Planning Act, the Provincial Policy Statement, 2020 (“PPS”) or OP requiring remediation to occur before planning approvals.” (para. 20)

The Appellant also says that it is “typical to proceed with development approvals prior to obtaining an RSC.” (para. 27) and that the Tribunal does not have “the jurisdiction or expertise to assess the efficacy of the remedial approach or potential alternatives, or in any way fetter the authority of the MECP, which has both the jurisdiction and expertise to ensue [ensure] the remediation and RA approach is effective and protective of human and ecological receptors on and off-site.” (para. 338)

The City argues that the remediation approach presented by the Appellant is “incomplete, “ tentative,” and “subject to change” depending on MECP requirements (para. 11(iii)).

To avoid duplicating arguments, the City adopted No Clearcuts Kingston’s written submission with respect to remediation and contamination.” (para. 12)

No Clearcuts Kingston argues that the Tribunal needs to make its own independent decision on the planning issues without being bound by the current or anticipated positions of other agencies – the MECP, Ministry of Natural Resources and Forestry, or the Conservation Authority. (para. 17)

No Clearcuts Kingston maintains that there are fundamental problems with the Appellant’s “(1) hydrogeological characterization of the site; (2) assessment of contamination sources; and (3) remediation strategy for the PSW.” (para. 40(a))

(1) Hydrology

No Clearcuts Kingston’s written submission contrasts the evidence of the Appellant’s witness with their witness.

The Appellant’s witness said that sufficient hydrogeological work was done to be able to assess the effect a remediation approach, such as capping, would have on groundwater conditions. (para. 41).

No Clearcuts Kingston’s witness testified that without knowing about the water table, how water flows on and under the site, and the effect of weather on the site there is an “unknown potential effect” post development, of contaminants moving into the Cataraqui River. The No Clearcuts Kingston’s witness testified that the Appellant’s hydrogeological evidence is “conflicting, missing, or simply inadequate” (para. 44) and “underscores the prematurity of the development application.” (para. 58)

(2) Sources of contamination

There are differences of opinion about whether the contaminants leave the site or are stable in the site soil and wetland sediment.

The Appellant’s witness testified that by not proceeding with the development, including remediation measures, there would be ongoing environmental risk and significant new adverse effects. (NCK, para. 67)

No Clearcuts Kingston says it is “speculation, not studies, that erosion and sedimentation conditions on the site are a source of off-site contamination to the river” and notes that the Appellant’s witnesses testified that there was no evidence of contaminants leaching into the river at this time and that the contamination remains “relatively immobile in the soil and sediment on-site.” (para. 71)

No Clearcuts Kingston argues that the Appellant’s characterization of the whole site as being contaminated (para. 75) and that the wetland is a source of resuspension of contaminants to the river are incorrect. (para. 68)

(3) Remediation strategies for the wetland

The remediation approach put forward by the Appellant is to fill and cap the wetland portion of the Tannery lands. (NCK, para. 95) There was conflicting evidence about the efficacy of this approach.

The presence of fuel and oil on the site, a “free product” referred to as non-aqueous phase liquids (NAPLs) and raised concerns. “The Appellant neither adequately assessed the nature and extent of NAPLs on the site and in the wetland, nor evaluated whether their presence would interfere with the effectiveness of the remediation proposal to cap the wetland to prevent contaminated sediment from reaching the river.” (para. 81)

No Clearcuts Kingston argues that given that there is no off-site contamination leaving the wetland there is no environment benefits to capping it and that capping/killing it could “(1) “interfere with the sequestering function the wetland has been performing; and (2) result in releases of heavy metal and other contaminants to the river.” (para. 98)

Timing of the development application

The Appellant submits that it is important to know upfront what the approved development footprint will look like before designing the detailed remediation plan.

No Clearcuts Kingston argues that the “planning process is ‘tarnished’ by uncertainties and data gaps regarding remediation and, from a land use planning perspective, remediation approval should be applied for first.” (para. 99) Further, “until it is determined how much of the subject property (if any) is developable after remediation, it is premature to grant Planning Act approvals … the Tribunal can have no confidence the current development, if approved under the Planning Act, will actually proceed in the manner proposed by the Applicant.” (para. 100)