Fairmount Ridge Documents - Page 1

Dear Fairmount/Armdale resident:

Re: Fairmount Ridge – Recent Court Decision

On June 24th, a judge decided a case about environmental aspects of the Fairmount Ridge development. I am writing to you now because you live near Fairmount Ridge, and I thought you might like to know more about the decision and what it means for our community.

Property development is the responsibility of HRM, and most controversial aspects of this particular development (e.g. traffic, blasting) have been handled by HRM and your councillor. However, the environment is the responsibility of the Province, and as your MLA I consider it my duty to keep you informed about local environmental issues.

Background

The Fairmount Ridge development is on a 39-acre property bounded by the CN rail line on the south, Downs Avenue on the north, Brook Street on the east and Northwest Arm Drive on the west. This property is sometimes referred to as "the Butler Lands," after the previous owner.

The Butler Lands were contaminated by 40 years of indiscriminate dumping of industrial waste, such as asphalt. The levels of contamination were not high, but they were too high for residential development. That is why the Butler Lands sat vacant for so long.

In 2001, a developer proposed a new method to clean the contaminated land. The proposal was to remove contaminated soil and place it in an engineered "containment cell" along the southern edge of the property, across the CN rail line from Crown Drive. This would be the first time in Nova Scotia that a stand-alone containment cell would be used in a residential project.

After much back-and-forth discussion between the developer and the provincial Department of Environment, the developer's plan was approved. Work on Fairmount Ridge began in 2002.

The Court Case

In the summer of 2003, the developer commissioned a new soil analysis. This new analysis used a method of "weighted averages" that had never before been used in Nova Scotia. The analysis concluded that the soil at Fairmount Ridge did not, in fact, exceed allowable levels for contaminants. Based on this new analysis, the developer asked the Department of Environment to approve a change in the remediation plan. The Department said it would not accept this new methodology.

In November 2003, the developer applied to the Nova Scotia Supreme Court for an order compelling the Minister of Environment to accept its new soil analysis. The developer had stopped remediation work in September, pending the outcome of the court case.

The Decision

The judge's decision was released on June 24, 2004As I expected, the judge sided with the Department of Environment and against the developer.

The judge pointed out that the process in which the developer and Department were engaged was under Guidelines that were voluntary. Consequently, the developer could not force the Department to do any particular thing. The judge also said that, even if he was wrong about the Guidelines, the Department's decision was reasonable.

Conclusion

It seems to me that the developer must now return to its original remediation plan, which is to separate potentially contaminated soil from uncontaminated soil, and place the potentially contaminated soil in the containment cell.

The Department of Environment believes that this plan is safe and effective, and I have no information that would suggest otherwise. Nevertheless, the use of a stand-alone containment cell in a residential project is a first for Nova Scotia, and so I, on your behalf, will continue to monitor closely events as they unfold.

I will keep the community informed of any significant new developments as they affect your local environment. You can also check my website (www.grahamsteele.ca), which I update regularly with news on this and other local issues.

Yours sincerely,
Graham Steele, MLA
Halifax Fairview

IN THE SUPREME COURT OF NOVA SCOTIA
S.H. No. 211363A

IN THE MATTER OF Chapter 1 of the Statutes of Nova Scotia 1994-95, the Environment Act

- and -

IN THE MATTER OF a decision of the Minister of Environment and Labour pursuant to s.137 of the Environment Act and dated November 17, 2003, denying an appeal filed by Fairmount Developments Inc. ("Fairmount") of the refusal by an Administrator of the Department of Environment and Labour ("NSDEL") to approve a Remedial Action Plan ("RAP") and Certificate of Compliance ("CoC") for property known as the Fairmount Ridge Property.

NOTICE OF APPEAL

TAKE NOTICE that Fairmount, a body corporate hereby appeals from the decision of the Minister dated November 17, 2003 (the "Decision") (which Decision erroneously refers to the appellant as 'Fairmount Subdivision Inc.' as opposed to its correct name of 'Fairmount Developments Inc.'), a copy of which is attached to this Notice of Appeal as Schedule "A", pursuant to S. 138 of the Environment Act, S.N.S. 1994-95, C. 1 (the "Act") on the following grounds:

1. The Minister states in his decision that "it is our position that the CCME's 'Guidelines for Management of Contaminated Sites' have not been met; therefore, your appeal is denied". The Minister has erred in fact and law in denying approval of the RAP and CoC submitted on behalf of Fairmount for the reason that there are no such guidelines entitled "CCME ‘Guidelines for Management of Contaminated Sites'";

2. In the event that the Minister intended to state in his decision that the 'Guidelines for Management of Contaminated Sites in Nova Scotia' as issued by the Department of Environment (as it then was), on March 27, 1996 have not been met, the Minister has erred in fact and law in denying approval of the RAP and CoC submitted on behalf of Fairmount on the basis that they do not meet the "Guidelines for Management of Contaminated Sites in Nova Scotia";

3. In the event that the Minister intended to state in his decision that the 'CCME Guidance Manual on Sampling, Analysis and Data Management for Contaminated Sites', volumes I and II (CCME-EPC-NCS62E and CCME-EPC-NCS66E) or the 'CCME Guidance Manual for Developing Site-Specific Soil Quality Remediation Objectives for Contaminated Sites in Canada' (March 1996) (collectively referred to as "CCME Guidelines") as endorsed by the Nova Scotia Department of Environment (as it then was), as of October 8, 1997, pursuant to its 'Guidelines for the Designation of a Contaminated Site", have not been met, the Minister has erred in fact and law in denying approval of the RAP and CoC submitted on behalf of Fairmount on the basis that they do not meet the "CCME Guidelines".

4. The Minister has further erred in law and fact. Without limiting the generality of the foregoing he has relied on irrelevant considerations and violated the rules of natural justice by providing inadequate and incomplete reasons for his decision to deny approval of the RAP and CoC submitted on behalf of Fairmount and further has fettered his discretion by requiring Fairmount to comply with Guidelines that do not have the force of law (as opposed to a statute or a regulation);

5. Such other grounds as may be apparent.

DATED at Halifax, Nova Scotia this 26th day of November 2003.

 __________________________
DUFFERIN HARPER
Merrick Holm
P. O. Box 1054
2100-1801 Hollis Street
Halifax, NS B3J 2X6
Telephone: 902-429-4111
Telecopier: 902-429-8215
Solicitor for Fairmount Subdivision Inc.

Mr. Harry Thompson, Q.C.
Goldberg Thompson
Suite 400 Sentry Place
1559 Barrington Street
Halifax, NS B3J 2G1

Dear Mr. Thompson:

RE: Notice of Appeal for Fairmount Subdivision Inc.

Your appeal dated October 16, 2003, was received in this office October 20, 2003.

Upon careful review of the "grounds of appeal", the information you submitted in support of your appeal and the applicable statutory provisions, it is our position that the CCME's "Guidelines for Management of Contaminated Sites" have not been met; therefore, your appeal is denied.

Pursuant to Section 138 of the Environment Act, you have 30 days to appeal my decision to the Supreme Court.

Sincerely yours,

Kerry Morash
Minister

Dear Mr. Steele:

Thank you for your letter of November 7, 2003, in which you inquired about the status of financial security for the containment cell on the Fairmount Subdivision site.

In December 2002, management staff of the Bedford office met with the developer to discuss the issue of security. As of January 2003, a solicitor with the Department of Justice was reviewing the security proposal presented by the developer.

However, since that time the developer has proposed and completed a pilot project using a technology that aims to reduce the volume of contaminated material to a point where there may not be a need for a containment cell. The initial results from the pilot project appear positive. At this time we are awaiting a decision from the developer as to how they wish to proceed.

If you have any additional questions or concerns, please feel free to contact Christine Penney, Acting District Manager, in our Bedford office at 424-2537.

Sincerely yours,

Kerry Morash
Minister

Hon. Kerry Morash
Minister of Environment & Labour
5151 Terminal Road, 6th floor
Halifax NS B3J 2T8

Dear Minister:

Re: Fairmount subdivision

On October 31, 2002, I wrote a letter to the Hon. David Morse, when he was still Minister of Environment & Labour, concerning the "Fairmount Ridge" development in my constituency. I received a reply from the Minister dated November 22, 2003, which said:

"Staff in our Bedford office are aware of the concerns expressed by residents during the recent meeting and will be discussing this issue with the developer, Glen Clarke, at a meeting scheduled to take place in mid November. I will undertake to advise you on the results of that meeting." (Emphasis added.)

I do not have a record of ever having received information about the security, if any, that the developer has put in place to ensure maintenance of the "containment cell."

As I mentioned in my letter a year ago, this particular use of a "containment cell" (i.e. placement on a separate lot beside a residential area) is new for Nova Scotia. It seems to me imperative that adequate legal security should be in place to secure the developer's long-term obligations, and that nearby residents should be advised of the nature of that security. I look forward to any advice you can give me on the status of this matter.

Yours sincerely,
Graham Steele, MLA
Halifax Fairview

Dear Mr. Steele:

Thank you for your letter of October 31, 2002 regarding Fairmount Subdivision.

Staff in our Bedford office are aware of the concerns expressed by residents during the recent meeting and will be discussing this issue with the developer, Glen Clarke, at a meeting scheduled to take place in mid November. I will undertake to advise you on the results of that meeting.

Again, thank you for bringing this matter to my attention.

Sincerely,

David Morse
Minister

cc: Darlene Fenton

Hon. David Morse
Minister of Environment & Labour
5151 Terminal Road, 6th floor
Halifax NS B3J 2T8

Dear Minister:

Re: Fairmount subdivision

Over the past number of months, I have been working with residents of the Fairmount subdivision and surrounding area in my constituency with respect to environmental contamination on "the Butler lands". Your departmental staff have been helpful.

At first the issue was how to get the site cleaned up. Now that a developer has come up with a remediation plan, and has started work, the environmental issue has changed. Now the issue is how to reassure local residents that the developer's "containment cell" technology will be safe and effective far into the future.

My understanding is that the developer will retain responsibility for the containment cell. However, residents have pointed out that there is no guarantee that this particular developer (a company incorporated earlier this year, which will likely exist only on paper after the residential lots are sold) will be around for 10, 25 or 50 years. In short, there is a lack of enforceable legal security for the developer's obligations. If there is a urgent problem in the future and the developer is not available to pay for the work, then the clean-up cost would almost surely fall on the public purse.

At a public meeting last month, officials from your department told residents that the only security is something in the order of $20,000 to cover inspections and related work for the next two years. Your staff will be able to confirm that the reaction from those attending the meeting was incredulity.

After the meeting I spoke with both the developer's principal (Mr. Glen Clark) and the developer's lawyer (Mr. Harry Thompson). Both understood the residents' desire for greater long-term security, and both indicated a willingness at least to entertain discussion with your department about how security could be provided.

My understanding is that this particular use of a containment cell (i.e. placement on a separate lot beside a residential area) is new for Nova Scotia. It seems to me imperative that the department should indeed pursue with the developer means of securing the developer's long-term obligation.

I am hopeful that you will be to provide me, and the affected residents, information about what steps your department is prepared to take to provide that security.

Yours sincerely,
Graham Steele, MLA
Halifax Fairview

COMMUNITY INFORMATION MEETING

Thursday, September 19, 2002
7:00 p.m. - 8:30 p.m.
St. James Anglican Church
2668 Dutch Village Road (at the Rotary)
concerning the
Former "Butler Property" Development

As work has commenced on the "Butler Property," many residents have questions regarding this development. I have arranged a meeting on behalf of the residents of Fairmount Subdivision, to obtain more information. The following representatives will be in attendance at this meeting: Nova Scotia Department of Environment & Labour Managers; the developer (or his designate); Kelly Denty, HRM Development Officer; Jim Donovan, HRM Supervisor-Permits & Inspections; David McCusker, HRM Manager-Traffic & Transportation Services; Ruth McCulloch, Council Assistant (minutes); Councillor Steven Adams, Chair; and Graham Steele, MLA.

A short overview will be given regarding the approval process, environmental remediation, blasting, and traffic. The remainder of the meeting will be a question and answer period.

Sincerely,
Linda Mosher, Councillor
District 17
Purcell's Cove - Armdale

Graham,

While subdivisions involving new streets and services can typically take up to 6 months to be approved this one does seem to be moving at a much quicker pace. I can attribute the quick turnaround to the technical design issues being relatively minor.

The biggest outstanding issue to approval remains our review of the associated traffic issues. The traffic study has been under review by our Traffic Services division and they have yet to finalize their comments. I am trying to set up a meeting with them this week to discuss any issues they may have. Approval of the subdivision depends on the outcome of our discussions with Traffic and depending on the issues, approval could occur as early as next week or it could be withheld for some time. We'll have a better idea of the timing after our meeting and I will get back to you with something more definite then.

I appreciate the fact that the residents would like to be informed of the project status, however, because there is no legislated requirement for public participation in the as of right subdivision process, I can't guarantee that any public forum will occur before the subdivision application receives our approval.

Best Regards,
Kelly Denty
Development Officer
Western Region HRM
tel: 902-490-4650
fax: 902-490-4645

Kelly,

Paul Sampson sent a helpful e-mail yesterday with some information about the Fairmount subdivision application. He suggested I contact you with any further questions.

The most important unanswered question I have is about the *timing* of HRM approval of the subdivision application.

I was under the impression that subdivision approval, even for an as-of-right development like this one, takes 3-6 months at least. What has
surprised me as this story unfolds is the speed at which the project seems to be moving.

Last Friday I met with Geoff McBeath, the environmental engineer, who told me that blasting for purposes of installing services would likely take place this week. He said the drilling equipment was already on the site. He said that no sensible developer would blast for services unless they had subdivision approval or were very close to getting it. Geoff said that HRM was "this close" (holding his thumb and forefinger a fraction apart) to getting subdivision approval.

From HRM's perspective, is that an accurate assessment? Has HRM granted subdivision approval, or is it literally within hours or days of doing so? If not, what's a reasonable estimate of how long it will take HRM to grant subdivision approval?

As MLA, my interest in this project has always been on the provincial level (especially the environmental aspects). I have no desire to interfere in the work of HRM or the HRM Councillors, or in the developer's right to develop the property. I am neither for nor against the development. However, I do want to ensure that existing Fairmount residents have a fair opportunity to be informed about environmental aspects of the project. Timing of HRM subdivision approval will be an important factor in giving them that opportunity.

For example, I believe the developer is now considering whether to participate in a public meeting or open house or some other forum for informing residents. Obviously it would be more helpful if that meeting were to happen before, and not after, substantial work is done on the site.

With thanks for your assistance,
Graham Steele, MLA
Halifax Fairview