Fairmount Ridge Documents - Page 2

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

Hello Graham,

Sorry for not getting back to you sooner on this. I talked to Kelly Denty, Development Officer for HRM who is dealing with the subdivision application on the above property. You may contact her at 490-4650.

Kelly has indicated that the environmental remediation work which is being carried out does not require HRM approval. As you are aware, NSDOE has recently given their blessing on the remediation plan.

The developer does not have subdivision approval yet. Longwave Enterprises initially submitted a concept subdivision application and received staff comments. Longwave then cancelled that application and subsequently submitted a final subdivision application on June 19/02 which is currently being reviewed by staff.

I hope this answers some of your questions. For further information, please contact Kelly at the above phone # or at dentyk@region.halifax.ns.ca

-Paul.

This message is going to John O'Brien, with a copy to Linda Mosher (who I know is on vacation) and Steve Adams.

Late yesterday afternoon (Thursday) I spoke at length with Paul Currie at the NS Department of Environment. Paul's 17-day vacation starts today. His manager, Darlene Fenton, is on vacation until Tuesday.

The story's a little complicated, but bear with me. The first complication is that the developer does not require any formal approval from NSDOE to remediate the property. However, a wise developer will work with NSDOE to ensure that the conceptual plans are in keeping with the applicable remediation guidelines. As we heard at the public meeting, the ultimate enforcement rests with purchasers and their lending institutions - no bank will give a mortgage on a property that isn't clear environmentally.

So with that caveat, the developer has been submitting plans to NSDOE and, I'm told, NSDOE recently gave approval to a remediation plan. The plan involves a two-stage development. In Phase A, the contaminated soil from the upper part of the property will be moved to the lower part of the property, and the upper part will be developed. In Phase B, all contaminated soil will be moved into a containment cell planned for the sourthern edge of the property, and the lower part of the property will be developed.

I'm not saying that all of this is a good or bad thing. It is NSDOE's view that development of the Butler Lands is the best way to get the
contamination cleaned up.

Like the residents, I have lots of questions and few answers: How does all this environmental activity relate to the subdivision approval process? Can the developer really start removing the contaminated soil from the upper part of the property, even though it doesn't have subdivision approval from HRM? To put it another way, how much of this environmental remediation work can be done without any approvals from HRM? Why does the developer say in the circular to residents that HRM has given "tentative" approval? Why did the developer's contractor send a note around saying there's going to be blasting?

Any light HRM can shed on these questions for me would be much appreciated.

Best regards,
Graham

Ron L'Esperance
Deputy Minister
Department of Environment & Labour
5151 Terminal Road, 5th floor
Halifax NS B3J 2T8

Dear Mr. L'Esperance:

Re: Development of the "Butler Lands", Fairmount Subdivision, Halifax

In March of this year, I had some correspondence with your predecessor and also with your Department's Bedford office about development of "the Butler Lands". It's a 39-acre parcel of contaminated land in my constituency. My letter to Darlene Fenton dated March 7, 2002, concluded with this paragraph:

"In your letter of February 18, 2002, you note that "concerns from the public about development of this property appear to be growing." That is certainly true. I trust that the Department of Environment will build public information and public consultation requirements into any future plans for remediation and/or development of the Butler Lands. The residents of the area around the property deserve no less."

In the last 48 hours, concerned residents have been calling to tell me that there is heavy equipment on the site, that "construction zone" signs have been placed at entrances, and that the developer has sent around subdivision plans and a notice that blasting will shortly be occurring. HRM officials appear as puzzled as I am as to what is going on.

Is the Department aware of what is happening on that site? Does the Department approve? Is it possible, despite my letter of March 7th, that the Department of Environment has gone ahead to give approval without any public information or public consultation?

Yours sincerely,
Graham Steele, MLA
Halifax Fairview

1. Letter dated March 5, 2002, to Graham Steele, MLA for Halifax Fairview, from Kevin McNamara, Deputy Minister, Department of Environment & Labour (1 page).

2. Letter dated February 18, 2002, from Darlene Fenton, Department of Environment & Labour, to Glen Clark, Longwave Enterprises (3 pages).

3. Department of Environment & Labour "Communication Forms" (7 pages, handwritten), recording contacts on February 4, 2002 (2); January 21, 2002; January 15, 2002; December 20, 2001; November 19, 2001 (unclear); and October 17, 2001. The names of the callers or meeting participants have been deleted.

4. Registry of Joint Stock Companies record printed on January 31, 2002, showing officers of Butler Brothers Limited (1 page).

5. Memorandum from Paul Currie to Darlene Fenton, both Department of Environment & Labour, dated December 21, 2001 (2 pages, with handwritten notation "Paul OK I agree with your recommendation DSF").

6. Letter dated December 21, 2001, from Paul Currie, Department of Environment & Labour to Glen Clark, Longwave Enterprises (1 page, 2 copies).

7. GeoNova map printed on December 18, 2001, showing the Butler property and surrounding area, scale 1:5000 (1 page).

8. Property Records Database records printed on December 18, 2001, showing the Butler property and abutting HRM lands (2 pages).

9. Briefing note dated December 10, 2001, prepared by Paul Currie, Department of Environment & Labour (2 pages).

10. Letter dated November 7, 2001, from Darlene Fenton, Department of Environment, to Jerry Scott, Matrix Environmental Incorporated (2 pages) plus fax cover sheet addressed to Glen Clark, Longwave Enterprises.

11. Letter dated October 22, 2001, from Jerry Scott, Matrix Environmental Inc., to Paul Currie, Department of Environment & Labour (3 pages, plus fax cover sheet with handwritten notes)

12. Handwritten notes dated April 5, 2001, unsigned (1 page).

13. Letter dated March 5, 2001, from G.A. McBeath, EarthTech Engineering Limited, to P. Currie, Department of Environment & Labour (2 pages, with some handwritten notes).

14. Letter dated November 29, 2000, from Paul Currie, Department of Environment & Labour, to Geoffrey McBeath, Earthtech Engineering Ltd. (2 pages).

15. E-mail dated November 22, 2000, from Paul Currie to Sharon Vervaet (1 page).

16. Letter dated November 20, 2000, from Harry D. Thompson, Q.C., to P. Currie, Department of Environment and Labour (1 page, plus fax cover sheet with handwritten note "Paul please follow-up on this with Mr. Glen Clark").

17. Letter dated November 20, 2000, from G.A. McBeath, EarthTech Engineering Limited, to P. Currie, Department of Environment & Labour (4 pages).

18. GeoNova map printed on November 20, 2000, showing Butler property and surrounding area, scale 1:2000 (1 page; 2 copies).

19. Letter dated May 31, 1999, from Paul Currie, Department of Environment, to Peter Butler, Butler Brothers Limited (4 pages, plus fax cover sheet to Mike Black, plus 5 pages of attachments). The file also contains 9 pages of internal correspondence leading up to this letter.

20. Handwritten notes dated May 13, 1999, unsigned (1 page).

21. Handwritten notes dated February 17, 1999, unsigned (1 page).

22. Note to file dated September 21, 1998, by Paul Currie, Department of Environment (1 page) with 6 pages of test results prepared by Philip Analytical Services. The note to file says "Sample results attached were taken from soils originating from 6061 Kempt Rd. and deposited at Fairmount S/D (Butler Bros.). This material was subsequently removed from Fairmount S/D back to Kempt Road."

23. Letter dated July 23, 1998, from Paul Currie, Department of Environment, to Kenneth W.J. Butler, Butler Brothers Limited (2 pages).

24. Fax dated January 29, 1998, from Donald A. Carey, Jacques Whitford Environment Limited, to Paul Currie, Department of Environment (1 cover page, 15 pages of test results, and 1 page with a map). The test results relate to fill that was trucked to the Butler Lands from a construction site at the corner of Young Street and Kempt Road in Halifax. All of this fill was eventually returned to the Young/Kempt site.

25. Handwritten notes dated December 4, 1997, and December 17, 1997, unsigned (2 pages).

26. Fax dated November 25, 1997, from Paul Currie, Department of Environment, to Don Carey, Jacques Whitford Environment Limited (1 page).

27. Province of Nova Scotia, Inter-Department Correspondence, to Stuart Norman, dated October 1, 1997 (1 page).

28. Sulphide Bearing Material Disposal Regulations under the Environment Act, dated April 11, 1995 (8 pages).

29. Plan of subdivision, prepared by Porter Dillon Consulting Engineers, dated March 9, 1988 (1 large map).

30. Contour map of the Butler property and surrounding area, undated, unsigned (1 page).

31. Handwritten notes headed "Butler Bros. property", undated, unsigned (1 page).

32. 1 photograph, undated, unsigned.

Darlene Fenton
District Manager
N.S. Department of Environment & Labour
1595 Bedford Highway, Suite 224
Bedford NS B4A 3Y4

Dear Ms. Fenton:

Re: Development of the "Butler Lands"

Thank you again for taking the time over the past number of weeks to help me to understand the Department of Environment's involvement with the Butler Lands.

Last night there was a meeting of the Springvale/Fairmount Residents' Association. The meeting was well-attended. All aspects of the proposed development were discussed. I addressed environmental issues and HRM Councillors Steve Adams and Linda Mosher addressed development, planning and traffic issues.

Subdivision residents have a strong interest in finding out as much as they can about what's going on with respect to the Butler Lands. Thanks to the information provided to me by you and Paul Currie, and also the information I received through my freedom of information request, I was able to inform the residents fully and (I hope) accurately about environmental issues on the property.

The residents asked me to pursue two issues with the Department of Environment. The first is to do everything I can to obtain the technical reports that have so far been withheld under the Freedom of Information and Protection of Privacy Act. On this issue I have written today to your Deputy Minister and I have spoken with your Department's FOIPOP Co-ordinator.

The second issue is the reason I'm writing to you now. To the Springvale/Fairmount residents, the most important thing is that the issue of the contamination of the Butler Lands be settled once and for all. There are homes on three sides of the Butler Lands. There are two schools abutting the property. Children play on the Butler Lands; some people walk on it; some pick blueberries. There is a strong community interest in (a) knowing what they're dealing with, and (b) getting it cleaned up. The residents' view, firmly expressed at last night's meeting, is that the time has passed to wait for Longwave to come up with a plan. They want the environmental issues on the property to be addressed now. If that means they have to be addressed by the present owner, then so be it.

In your letter of February 18, 2002, you note that "concerns from the public about development of this property appear to be growing." That is certainly true. I trust that the Department of Environment will build public information and public consultation requirements into any future plans for remediation and/or development of the Butler Lands. The residents of the area around the property deserve no less.

Yours sincerely,
Graham Steele, MLA
Halifax Fairview

c.c. Linda Mosher, HRM Councillor for District 17
Springvale/Fairmount Residents' Association

Kevin McNamara
Deputy Minister
Department of Environment & Labour
5151 Terminal Road, 5th floor
Halifax NS B3J 2T8

Dear Mr. McNamara:

Re: FOIPOP Application 02-027 — Butler Lands

Thank you for your letter of March 5, 2002, outlining the Department's response to my FOIPOP request for records concerning the "Butler Lands" in the Fairmount subdivision in my constituency. I understand that certain documents have been withheld, pending notification of third parties, and also that the withheld documents consist entirely or principally of detailed environmental reports commissioned by third parties.

I understand and accept that you have a statutory obligation to consult the third parties. But I am writing to you now to urge that the withheld documents, and in particular the technical reports, be released publicly, regardless of whether the third parties consent.

You are probably aware that there are homes on three sides of the Butler Lands. There are two schools directly abutting the property. Children play on the Butler Lands; some people walk on it; some pick blueberries. There is a strong community interest in knowing precisely what the condition of the property is.

Last evening there was a meeting of the Springvale/Fairmount Residents' Association, at which I addressed the environmental issue. The residents expressed a strong desire to view the technical reports about what is on the Butler Lands, so they can judge for themselves what degree of risk, if any, they and their families are exposed to.

If the third parties agree that these reports can be released, there is no problem. But if the third parties do not agree, that is (as you know) not the final word. The third parties' request that the reports not be released is only one factor for the Department to weigh. The public interest in disclosure is another strong consideration that the Department must take into account. In this regard I refer you in particular to s. 20(2)(b) and s. 20(4)(b) of the FOIPOP Act.

In addition to s. 20 of the FOIPOP Act (personal information), your letter of March 5th quotes s. 21 (confidential information). For s. 21 to apply, all three conditions in s. 21(1) must be met. In my submission, s. 21 does not apply because the reports do not fit into s. 21(1)(a) (and they most certainly are not "financial information" as quoted in your letter), and even if they do, none of the consequences in s. 21(1)(c) could reasonably be expected to occur.

For all of these reasons, I would urge your Department to release all remaining information in its files, including the technical reports, regardless of whether the third parties give their consent.

Yours sincerely,
Graham Steele, MLA
Halifax Fairview

c.c. Linda Mosher, HRM Councillor for District 17
Springvale/Fairmount Residents' Association

I Purpose

The intent of this policy is to provide clarification about the Department's position on the enforceability of guidelines.

II Legislation

The Environment Act, s. 8(2)(b), states that:

"The Minister, for the purposes of the administration and enforcement of this Act, and after engaging in such public review as the Minister considers appropriate, shall establish and administer policies, programs, standards, guidelines, objectives, code of practice, directives and approval processes pertaining to the protection and stewardship of the environment."

Throughout the Environment Act there are numerous sections providing regulations making powers (ss. 25, 49, 66, 74, 84, 91, 102, 110, 112, 136, 140, 155 & 171).

III Definitions

1. "approval" means an approval pursuant to the Environment Act or regulations made pursuant to the Act.

2. "guideline" means a document that

a) is intended to provide guidance without imposing duties or creating rights;
b) describes functions or indicates recommended conduct; and
c) violation of which is not subject to legal penalty, unless incorporated in a regulation, control order or as a term or condition of an approval.

3. "regulation" means a legally binding, enforceable rule created under the authority of the regulation-making powers of the Environment Act and complies with the Regulation Act, R.S.N.S. 1989, c. 393, s. 2(g).

IV Department Guidelines

This policy is intended to apply to all guidelines issued by the Department. Guidelines filed under the Environment Act are filed in the Environmental Registry.

V Policy Statement

1. Guidelines developed by the Department are prepared to provide interpretive guidance on various subject matters. They are intended to be flexible and are not to be interpreted as a law. Alternative measures/proposals may be submitted to the Department for review.

2. Where a guideline is incorporated by reference in whole or in part in a regulation, control order, or as a term and condition of an approval, the Department will enforce compliance.

Date: June 2, 1997

(Signed)
Peter C. Underwood
Deputy Minister
Department of the Environment

Dear Fairmount resident:

Re: Development of Butler Lands – Environmental Impacts

I am writing to inform you about environmental aspects of the proposed development of the "Butler lands", which is the parcel of land behind Springvale Elementary School.

Background

You have probably heard or read recently that developers are interested in residential development of this parcel of land. In fact there has been talk of development for many years, but things have probably never before progressed as far as they have today. There is a developer, Longwave Enterprises, actively working on plans. On January 27th, the Daily News published an article about the development and I enclose a copy in case you didn't see it.

Development is primarily a municipal concern. Your HRM Councillor, Linda Mosher, is fully informed about the proposed development. If you have questions or comments, I would encourage you to call her (477-8618) or send her an e-mail (mosherl@region.halifax.ns.ca).

I want to stress that I am, at present, neither for nor against development of the Butler lands. As your provincial representative, my objective is to keep track of any involvement, actual or potential, by the provincial government, and to ensure that local residents are kept informed.

To date, the primary involvement of the provincial government has been monitoring for environmental compliance. There are also possible impacts on access to Northwest Arm Drive, which is a provincial road. Springvale Elementary School would also be affected, since a boost in enrolment would make the school a less likely target for closure, either now or in the foreseeable future.

The Butler lands and the Environment

The "Butler lands" have been owned for many years by Butler Brothers Ltd., a well-established construction and development company. The parcel of land that remains undeveloped was used from time to time for construction debris and other industrial waste such as asphalt.

I am informed by the Department of Environment that environmental engineers have studied the site to determine exactly what is there. I recently applied under the Freedom of Information Act to obtain copies of all documents held by the Department of Environment related to the Butler lands. I will make available to anyone who is interested a copy of any documents I receive.

For those wishing to read more about the guidelines the developer must meet before any development can take place, I would refer you to two websites:

www.atlanticrbca.com
www.gov.ns.ca/enla/pubs - then enter "contaminated" in the search field

From the second site you can download the province's "Guidelines for Management of Contaminated Sites in Nova Scotia" (21 pages, PDF format). If anyone is interested in reading the document but does not have access to the Internet, please let me know and I will deliver a copy to you.

You will see from these guidelines that a "Certificate of Compliance" can be obtained from the Department of Environment, provided that contamination is proven to be below acceptable levels. Development could proceed without a Certificate of Compliance, but that is unlikely. I have been told that the developer has submitted conceptual clean-up plans to the Department of Environment. The Department has asked for more information.

Conclusion

The development of the Butler lands will clearly have an impact on the Fairmount subdivision. As your MLA, I am committed to working with your HRM Councillor and interested residents to ensure that nearby homeowners are kept fully informed and have every opportunity to be heard.

If you have questions or comments, I welcome your calls (453-5556), faxes (453-4566) or e-mails (graham@grahamsteele.ca)

Yours sincerely,
Graham Steele, MLA
Halifax Fairview