Snieg v Corporation of the Town of New Tecumseth, 2016 CanLII 66268 (ON NFPPB)
NORMAL FARM PRACTICES PROTECTION BOARD
IN THE MATTER OF the Farming and Food Production Protection Act, S.O. 1998, Ch. 1
AND IN THE MATTER OF an application to the Board, under Section 6 of the Farming and Food Production Protection Act, S.O. 1998, Ch. 1 for a determination as to whether a municipal bylaw is restricting a normal farm practice.
Board File No.: 2015-01
Between:
Stan Snieg
Applicant
and
Corporation of the Town of New Tecumseth
Respondent
Appearances:
Aynsley Anderson, Counsel for the Applicant
Colleen E. Butler, Counsel for the Respondent
Before:
Glenn C. Walker, Vice-Chair
Jane Sadler Richards
Robert Brander
REASONS FOR DECISION
A. Introduction
An application has been made by the Applicant, Stan Snieg, pursuant to Section 6 of the Farming and Food Production Protection Act, S.O. 1998, C.1, as amended (the “Act”).
The purpose of the hearing is to determine whether By-Law No. 2012-136 of the Corporation of the Town of New Tecumseth (hereinafter referred to as the “Fill By-Law”) restricts the Applicant’s proposed importation of fill, which the Applicant alleges to be a normal farm practice.
This application came before the Board for a hearing on December 21, 22 and 23, 2015 and March 23 and 24, 2016 and was heard at Alliston, Ontario.
The Board heard evidence from the Applicant and his witnesses, Michael Flis, who was qualified to give opinion evidence with respect to storm water management, Duncan Richardson, who was qualified to give opinion evidence with respect to site grading, Kirk Johnson, who was qualified to give opinion evidence with respect to geo-technical engineering and geo-science, and Brian Gilroy, who was qualified to give opinion evidence with respect to apple farming in Ontario. The Board also heard evidence on behalf of the Corporation of the Town of New Tecumseth from Bob Lisk, Janice Symons, Brian Johnson, who was qualified to give opinion evidence with respect to grading and storm water management, John Miller, Chief Building Inspector for the Town of New Tecumseth, whose responsibility it is to enforce the subject by-law, Margaret Appleby, who was qualified to give opinion evidence with respect to apple farming, Richard Vatri, Director of Engineering for the Town of New Tecumseth, and Barbra Perreault, Manager of Regulation and Enforcement for the Nottawasaga Valley Conservation Authority (hereinafter called “NVCA”).
In facilitating public participation in the hearing, further to Rules 55 and 56 of the Board’s Rules of Practice and Procedure, the Board heard evidence from Carmela Marshall. The Board also received and considered written statements from local residents, all of whom opposed the application.
For the reasons that follow, the Board grants the application on the terms stipulated.
B. Factual Background
(a) Site Location and Description
Paragraph 1.2 of the Brief prepared by Jones Consulting Group Ltd. and dated June, 2014 succinctly describes the site location. The subject land is legally described as the North Half of Lot 21, Concession 7, in the Township of New Tecumseth, now in the Town of New Tecumseth, in the County of Simcoe and is located on the east side of Sideroad 20, South of County Road 21 (also known as 8th Line). Municipally, the site is known as 2881 Sideroad 20, New Tecumseth, Ontario. The site is comprised of approximately 18 hectares or 45 acres and is located within the Pennville Creek Watershed, a Sub-Watershed of the larger Nottawasaga Watershed. Pennville Creek crosses through the northeast corner of the property before discharging north through the County Road 1 bridge. A smaller tributary of Pennville Creek also traverses the site from the southwest property boundary, flowing north and joining with Pennville Creek just upstream of the County Road 1 bridge. This small intermittent tributary splits the two elevated areas proposed to be filled. Due to the proximity of the two creeks within the site boundaries, a portion of the subject property is regulated by the NVCA.
Part of the site consists of rolling agricultural land with the balance being occupied by the creek and tributary and their flood plains. The soil was described as being either clay or clayey silt. Bob Lisk rented the subject property from 1986 until approximately two years before the commencement of the hearing. He grew corn, soybeans, wheat and sometimes hay on approximately 25 acres of the 45 acre parcel. For the last two years, the lands have remained fallow.
(b) Mr. Snieg’s Proposal
Stan Snieg purchased the subject property in 1999 for the purpose of building a house and retiring there. In 2000, he purchased a property across the road located at 2866 Sideroad 20. He renovated the house on that property, brought in fill and established an orchard of approximately 289 fruit trees. This property is also very rolling and required improvement before his orchard could be planted.
Mr. Snieg has obtained a master business licence showing that Stan’s Fruit Farm is a sole proprietorship in his name. He obtained a municipal sign permit from the Corporation of the Town of New Tecumseth, obtained an Ontario Federation of Agriculture membership and successfully completed the Grower Pesticide Safety Course and the Canada-Ontario Environmental Farm Plan Workshop. The fruit from his home location is not sold commercially but is sold locally.
His plan is to develop the subject property as an apple orchard. In order to do so, he wishes to remove the topsoil from the area to be filled and then to import approximately 87,000 cubic metres of fill to soften the contours of the land and provide better water and air drainage for the proposed orchard.
(c) Site Regulation
(i) Fill By-Law
The Site Alteration and Fill By-Law No. 2012-136 was passed by the Corporation of the Town of New Tecumseth on November 12, 2012. This By-Law superseded By-Law No. 2010-021, which was a previous Site Alteration and Fill By-Law under which a permit could be obtained for the dumping and placing of fill on lands within the municipality.
The present By-Law prohibits site alteration on any lands within the Town of New Tecumseth including the importation of fill and soil, save and except for the exemptions set out in paragraph 4.0 and the exceptions set out in section 5.0 of the By-Law. It was common ground that none of the exemptions or exceptions in the By-Law apply to Mr. Snieg’s proposal.
(ii) Nottawasaga Valley Conservation Authority
Portions of the subject site are regulated by the NVCA. The Fill By-Law does not apply to areas regulated by the NVCA. Pursuant to the regulations, no fill can be placed in NVCA wetlands or in the wetland buffer zone without an environment impact study. Consequently, if no fill is placed within the wetland area or the wetland buffer area as designated by the NVCA, no permit form NVCA would be required.
(iii) Zoning
The zoning by-law for the Corporation of the Town of New Tecumseth would permit Mr. Snieg’s proposed use as an agriculture use and compliance was not in question.
(d) Previous Fill Projects
Mr. Snieg purchased the subject site in 1999. In 2008, he brought in some fill to a small portion of the site adjacent to Sideroad 20. At that time, there was no Fill By-Law and the only requirement was to obtain a permit from NVCA.
After the Corporation of the Town of New Tecumseth passed a Fill By-Law, which had a permitting process, Mr. Snieg obtained a permit from the municipality to place additional fill on the elevated portion of the site. Mr. Miller testified that there were complaints about that project including trucks lined up on the sideroad, trucks delivering fill very early and very late in the day, dust, etc. The permitting process under that by-law did not appear to be very sophisticated in that it only required that a grading plan, which was not reviewed by a town engineer, be submitted. There was no application fee and only a $5,000.00 security deposit which only applied to damage in connection with the site but not damage to roads, etc. Mr. Miller testified that although there were complaints about traffic, dust, noise, hours of work, etc., the municipality had no way to control these issues.
When Mr. Snieg next approached the municipality about a permit for additional fill, he was advised that a new by-law had been passed which prohibited the moving or importation of fill and was told to apply to council for an exemption. His request for an exemption was denied and Mr. Snieg subsequently applied to this Board for relief.
(e) Apple Orchard Proposal
Mr. Snieg’s plan is to develop approximately nineteen acres of the subject site as an apple orchard of about 3,000 trees of six to eight different varieties. The site is not presently suitable for an apple orchard as it is not conducive to good water drainage or air drainage.
Several witnesses noted on their visits that there was standing water because of the topography and because of the hilly nature of the site. It is accepted that apple trees require good drainage as standing water will drown the roots. Several witnesses testified that tiling the area to be used as an orchard would achieve the same effect as bringing in fill.
Air drainage is also important for an orchard. As cold air is dense, it gravitates to the lowest areas. Mr. Snieg wants to raise the lower portions of this land in order to allow the cold air to drain away. In the spring, the accumulation of cold air in low areas leads to frost damage to the budding trees.
Two experts were qualified to give evidence with respect to apple growing. Brian Gilroy, who has been growing apples since 1987, is a Past President of the Ontario Apple Growers. He identified both air and water drainage issues for this property as it is now. He explained that cold air moves like molasses and when it hits an obstruction it starts to pool up and flow backwards. In the spring this can damage a crop by freezing the blossoms. He also stated that apple trees do not like “wet feet” and proper drainage is essential to keep the trees alive. He felt that the Snieg proposal was possible in that location if the water drainage and air drainage issues were addressed.
He stated that the filling in of the lower areas would allow for a steady flow of air from south to north and then out over the 8th Line. He felt that the filling in of the low spots would improve the water drainage and the air drainage for this site although some tiling might be necessary. In his opinion, site alteration is quite common in orchards to improve air drainage but that, in the past, this has been restricted to cut and fill operations.
Margaret Appleby, who testified for the Respondent, was also qualified as an expert in apple growing and has extensive experience. She also stressed that water drainage and air drainage are important considerations. However, she felt that the water drainage issue at this site could be dealt with by way of tiling and that air drainage would not be improved by bringing in the fill as the flow of air would be obstructed at the 8th Line.
Where there is a conflict in their opinions, we prefer the opinion of Mr. Gilroy.
(f) Reports and Studies
In preparation for implementing his proposal, Mr. Snieg has obtained a number of reports and studies concerning this site.
(i) LKS Consulting Report. The first study was done by Lucy Shaw, P.Eng. of LKS Consulting and is dated December 5, 2014. This report was prepared for the purpose of Mr. Snieg’s request to the Corporation of the Town of New Tecumseth for an exemption from the Fill By-Law. This report argued that the proposed work is the continuation of the originally approved work based on the site alteration permit issued in 2008.
(ii) Jones Report. The second report entitled “Flood Plain Analysis & Fill Operations Design Brief” was prepared by the Jones Consulting Group Ltd. and is dated June 19, 2014. This report was prepared for submission to NVCA and concludes that the proposed grading and fill operations to facilitate the planting of fruit trees will be completed above the regional flood plain and accordingly, the proposed works will not impact the regulatory high water levels associated with Pennville Creek.
(iii) Terraprobe Report. The third report was prepared by Kirk Johnson, P.Geo., P. Eng., of Terraprobe Inc. and is dated December 14, 2015. This report was prepared for Mr. Snieg in connection with this application and supports his proposal.
C. The Act
The objectives of the Farming and Food Production Protection Act, 1998, are set out in the preamble, which states as follows:
“It is desirable to conserve, protect and encourage the development and improvement of agricultural lands for the production of food, fibre and other agricultural or horticultural products.
Agricultural activities may include intensive operations that may cause discomfort and inconveniences to those on adjacent lands.
Because of the pressures exerted on the agricultural community, it is increasingly difficult for agricultural owners and operators to effectively produce food, fibre and other agricultural or horticultural products.
It is in the provincial interest in agricultural areas, that agricultural uses and normal farm practices be promoted and protected in a way that balances the needs of the agricultural community with the provincial health, safety and environmental concerns.”
“Agricultural Operation” means an agricultural, aquacultural, horticultural or silvicultural operation that is carried on in the expectation of gain or reward.
“Farmer” means the owner or operator of an agricultural operation.
Subsection 6(1) through 6(3) provide as follows:
“6(1) No municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation.
(2) A person described in subsection (3) or a municipality may apply to the Board, in a form acceptable to it, for a determination as to whether a practice is a normal farm practice for purposes of the non-application of a municipal by-law.
(3) An application may be made by,
(a) Farmers who are directly affected by a municipal by-law that may have the effect of restricting a normal farm practice in connection with an agricultural operation; and
(b) Persons who want to engage in a normal farm practice as part of an agricultural operation on land in the municipality and have demonstrable plans for it.”
Subsection 6(15) sets out the factors which must be considered by the Board in determining whether or not a practice is a normal farm practice. It states as follows:
“In determining whether a practice is a normal farm practice, the Board shall consider the following factors:
1. The purpose of the by-law that has the effect of restricting the farm practice.
2. The effect of the farm practice on abutting lands and neighbours.
3. Whether the by-law reflects a provincial interest as established under any other piece of legislation or policy statement.
4. The specific circumstances pertaining to the site.”
“Normal farm practice” is defined as meaning a practice that:
(a) Is conducted in a manner consistent with proper and acceptable customs and standards as established and followed by similar agricultural operations under similar circumstances; or
(b) Makes uses of innovative technology in a manner consistent with proper advanced farm management practices.”
D. Discussion and Analysis
Issues to be Determined
The issues to be determined by the Board are:
1. Is Mr. Snieg a “farmer” as defined in the Act?
2. Is the proposed practice part of or ancillary to an agricultural operation?
3. Does the applicant have demonstrable plans?
4. Is the proposed practice a normal farm practice?
5. If the practice is a normal farm practice, is it restricted by the Fill By-law?
(1) Farmer Status
Counsel for the respondent argues that Mr. Snieg is not a farmer and that appearing to be a farmer on paper does not, in fact, make one a farmer. It is unnecessary for the Board to decide whether or not Mr. Snieg is presently a farmer as defined by the Act as Mr. Snieg is applying as a “person” who wants to engage in a normal farm practice as part of an agricultural operation, which means he does not presently have to meet the definition of “farmer”. Subsection 6(3)(b) specifically includes persons who are not already farmers and this is buttressed by Subsection 6(7) which provides that a person described in clause (3)(b) is a party to the hearing. Consequently, Mr. Snieg has standing to bring this application.
(2) Is the Proposed Practice Part of or Ancillary to an Agricultural Operation
The first matter of consideration is what is the proposed practice. The proposed practice is not apple farming. The proposed practice is bringing in fill to change the topography of the subject site to improve the land for use as an apple orchard. An apple orchard would be considered a horticultural operation and therefore, by definition, an agricultural operation. Mr. Snieg must only satisfy the Board that he wants to engage in the practice of land improvement by way of the depositing of fill as part of the proposed agricultural operation and that that practice, ie. land improvement by way of bringing in fill, is a normal farm practice.
However, the proposed practice does not fall under any of the other headings in Subsection 1(2) of the Act and can only be justified under clause (a) “draining” and Subsection 1(2)(j) which states that it must be a necessary but ancillary part of an agricultural operation.
In order to qualify, the Applicant must prove on the balance of probabilities that the importation of fill for the purpose described by the Applicant is necessary to improve the land for an apple orchard. We accept the evidence of Brian Gilroy, an experienced apple farmer, who, having visited the site, was of the opinion that site alteration was necessary for Mr. Snieg to have a successful apple orchard as it would improve water drainage and air drainage. The Respondent’s expert in apple farming, Margaret Appleby, did not disagree on the necessity of land improvement for this property but felt that the water drainage issue could be dealt with by way of tiling and that the proposed site alteration would not improve air drainage.
The Board is satisfied that the Applicant has, on the balance of probabilities, demonstrated that the proposed practice not only includes drainage, both water and air, but is an ancillary part of the agricultural operation.
(3) Demonstrable Plans
The Applicant has proven that he has demonstrable plans for not only the proposed practice of fill importation to improve the land but also for the proposed agricultural operation.
With respect to the proposed practice, he has engaged in discussions with NVCA to determine the footprint of the lands which can be affected by the site alteration. He has produced reports by the Jones Consulting Group Ltd. and Terraprobe Inc. to assess the topsoil and to develop grading plans.
With respect to the agricultural practice of a proposed apple orchard, he has registered a business name, obtained a sign licence for the business, obtained an individual membership in the Ontario Farmers’ Association, obtained a membership in the Ontario Apple Growers’ Association, obtained an estimate for hydro-seeding the lands once altered, completed the Environmental Farm Plan Workshop and the Grower Pesticide Safety Course. He has also testified as to the number of trees he intends to plant, their configuration and their type. He also has a small orchard already through which he has gained valuable experience in apple farming.
In our opinion, Mr. Snieg has proven that he has demonstrable plans for both engaging in the proposed practice and the proposed agricultural operation.
(4) Normal Farm Practice
The Board did not hear any evidence that land improvement by the importation of fill has been used in the establishing of any other apple orchards. Consequently, we must look to the second part of the “normal farm practice” definition, that is: “makes use of innovative technology in a manner consistent with proper advanced farm management practices”. “Innovative” is defined in the Oxford Dictionary as meaning introducing new methods. The same dictionary defines “technology” as being the application of scientific knowledge for practical purposes.
The Act is a remedial statute, meant to provide a remedy where otherwise none exists. It should be given a fair, large and liberal construction. As such, the Board considers that the improvement of lands by the importing of fill is innovative technology, providing a new method using the science of engineering to solve the problem of land improvement provided it is consistent with proper advanced farm management practices. If land improvement by way of importation of fill has never been used in the establishment of an apple orchard, or any other orchard for that matter, that does not mean that relief is not available to the Applicant in the proper circumstances. The Board has considered that site alteration has been used, according to Mr. Gilroy, in the preparation of a site for an apple farm using the cut and fill method. This method of course would also be prohibited by the fill by-law.
The importation of fill has also been used to re-establish agricultural land in decommissioned gravel pits. See Stull v. Town of Halton Hills, 2014, ONNFPPB 57 (CanLII).
Counsel for the Applicant also cites the BG Subdivision – Brouwer Farm situation in the Town of New Tecumseth where 32,000 cubic metres of fill was imported for the improvement of the land. Although this was done by way of a subdivision agreement and not an exemption to the Fill By-Law, it is an example of land improvement by way of importation of fill.
The Respondent argues that this cannot be a normal farm practice because it is, in fact, a commercial fill operation. The Applicant answers that a commercial fill operation and a normal farm practice are not mutually exclusive. We agree.
The Respondent cites the Ontario Superior Court decision in Township of Uxbridge v. Corbar Holdings Inc. et al. (2012) ONSC 3527 (CanLII) as authority for the finding that the dumping of large quantities of fill does not fall within the definition of a normal farm practice. With respect, the Honourable Justice dedicated only one paragraph of his 44 paragraph decision to the analysis of the issue of “normal farm practice”. In the Town of Oakville v. Read (2010) ONSC 170 (CanLII), the Divisional Court stipulated that the four considerations set out in Subsection 6(15) of the Act must be addressed in any decision deciding what is a normal farm practice. An analysis of that Subsection appears to be missing from Mr. Justice Edwards decision and we therefore find that decision of little assistance in this case or any others regarding fill by-laws. What Corbar does stand for, as confirmed by the Ontario Court of Appeal is that where a party has failed to make application to the Board pursuant to Subsection 6(2) of the Act, a court is a liberty to make a finding as to whether a practice is a normal farm practice.
It should also be noted that with respect to the issue of normal farm practice, the focus of the Board is site specific. Subsection 6(15)(4) of the Act states that one of the factors the Board must consider are the specific circumstances pertaining to the site in question. As the Board stated in Cox v. Town of Mono (2016) (CanLII) 10661 ONNFPPB , “the public should realize that if the Board finds that a fill operation or proposal is not a normal farm practice in any particular case it may, depending on the circumstances, find it to be a normal farm practice in another.”
Also in the case of Cox v. Town of Mono, the Board had the following to say about innovative technology: “There is no evidence before the Board that the fill proposal of Mr. Cox is consistent with proper advanced farm management practices. In fact, there is no evidence that there are any proper advanced farm management practices for this kind of situation. What we do have is the MOECC-Best Management Practice document that deals broadly with the management of excess soil. The Board accepts this document as the best evidence available to it in the nature of a proper advanced farm management practice.”
(5) Consideration of Subsection 6(15) Factors
(a) Purpose of the Fill By-Law
The purpose of the Fill By-Law is set out in its preamble which provides as follows:
“Whereas Section 142 of the Municipal Act, 2001, Chapter. 25 provides that Council of a local municipality may pass by-laws to:
(a) Prohibit and/or regulate the placing or dumping of fill;
(b) Prohibit and/or regulate the removal of soil;
(c) Prohibit and/or regulate the alteration of the grade of the land;
And whereas Council is desirous of addressing and preventing the negative impacts of site alteration on the environment and the residents of the Town;
And whereas Council deems it in the public interest to regulate the dumping and placing of fill on lands in order to ensure existing drainage patterns are maintained, any changes to existing drainage patterns are appropriate to protect environmental features, to prevent the importation of hazardous materials and to prevent the possibility of groundwater contamination;”
The purpose of the By-law is clear from the above-referenced recitals. However, the Town of New Tecumseth has chosen not to regulate but to prohibit site alteration except in very narrow circumstances with no permitting process available to residents.
(b) Effects on Abutting Lands and Neighbours
The Respondent has concerns that the proposed importation of fill will cause significant dust, disturbance and noise which will have a negative impact on neighbours’ ability to enjoy their properties. There are also concerns about traffic and damage to the municipal roads on the haul route. The Respondent argues that since the Fill By-Law does not have a permitted process, there would be no way for the municipality to control these issues. The Board would refer to the preamble to the Act which acknowledges that there may be discomfort and inconveniences to those on adjacent lands.
(c) Provincial Interests
In Cox v. Town of Mono, the Board found that the Fill By-Law reflected several provincial interests. The Fill By-Law in that case had a permitting process which required a Fill Management Plan in conformity with the best management practices as set out in the MOECC-Best Management Practices Guidelines. The Board also found that that Fill By-Law reflected provincial interest under the Ontario Water Resources Act by regulating site alteration in order to control the drainage of surface waters and erosion.
The Town of New Tecumseth Fill By-Law does not have a permitting process and therefore does not reflect these provincial interests, although it does reflect the provincial interest under the Municipal Act, 2001 as set out in Section 142.
(d) Specific Circumstances Pertaining to the Site
To date, the use of this site for agricultural purposes has not been significant because of its rolling nature. The Board finds that a better use for the property can be made if Mr. Snieg’s proposal is implemented. The location of the Pennville Creek and its tributary on the site has engaged the NVCA. Mr. Snieg has worked with them closely in the past and continues to do so.
6. Does the By-Law Restrict a Normal Farm Practice
The Fill By-Law is prohibitory. Mr. Snieg does not fall within either the exemptions or the exceptions. Consequently, the By-Law does restrict his proposal.
E. Findings
Based on the evidence and its consideration of the issues and legislation, the Board finds:
a) That the Applicant is a person entitled to apply to the Board pursuant to Subsection 6(3)(b).
b) That the Applicant’s proposed practice of land improvement by way of the importation of fill is a part of or ancillary to the proposed agricultural operation.
c) That Mr. Snieg has shown that he has demonstrable plans for the proposed practice.
d) That the proposed practice is a normal farm practice as it makes use of innovative technology provided that it is consistent with proper advanced farm management practices, such as the MOECC – Management of Excess Soil – A Guide for Best Management Practices, in this case.
e) That the Town of New Tecumseth By-Law No. 2012-136 restricts that normal farm practice.
F. Decision and Order of the Board
The Board is of the opinion that the proposed farm practice will be a normal farm practice if the Applicant makes the following specific modifications:
a) The Applicant shall retain the services of a Qualified Person (QP) as defined in Section 5 of Ontario Regulation 153/04 to undertake an assessment to establish the current site condition of the soil and ground water to ensure the site is appropriate to be used as a Receiving Site in accordance with the MOECC – Management of Excess Soils – A Guide for Best Management Practices (Exhibit No. 40);
b) The Applicant shall commission a Fill Management Plan to be prepared by a QP. The Fill Management Plan must be in strict compliance with the MOECC-Management of Excess Soil – A Guide for Best Management Practices.
c) The Fill Management Plan must specifically address:
• Procedures to prevent the introduction of invasive plant or animal species;
• Copies of any documentation regarding municipal or conservation authority licenses/permits, provisions of provincial plans which apply to the site, and any requirements of provincial ministries;
• Identification of appropriate soil quality and soil types for excess soil to be received at the site as determined by the QP based on site location/sensitivity, anticipated land use, ground water use/sensitivity, pre-existing site conditions or other factors as to ensure that there is no likelihood of adverse effect;
• Dust and noise control measures;
• Site security measures;
• Traffic and transportation management plan;
• Pre-approval of all Source Sites based on a protocol determined by the Source Site and Receiving Site QPs;
• Protocol for incoming excess soil specifying:
▪ That each incoming load have documentation signed by the source site QP which includes appropriate and representative soil analyses confirming the soil qualities acceptable for the receiving site;
▪ That visual and olfactory inspections will be conducted of all incoming loads to screen for odour, visible staining or debris; and
▪ Contingency measures for load rejections.
• A record keeping system to create and store written documentation to track each incoming load of excess soil including records of:
▪ Date and time of arrival of the load to the receiving site;
▪ Name and location of the source site;
▪ Volume of excess soil received;
▪ Documentation from the source site signed by a QP including soil analytical results;
▪ Confirmation by the receiving site QP acknowledging that the incoming excess soil is acceptable for receipt at the site;
▪ Rejections of any loads of soil due to visible inspection or review of analytical results; and
▪ Documentation to the source site owner/operator and QP once excess soil is received, confirming the soil was received and the type, quality and quantity was appropriate.
• Clear signage of the site which identifies a contact name, hours of operation (with reference to local by-laws where appropriate), and daily and after hours contact telephone numbers;
• Storm water management plan, which includes provisions to prevent ponding and flooding;
• Erosion control and run-off control sufficient to prevent impacts to drainage and sediment discharge to nearby water courses or storm water systems, and to ensure materials remain where placed;
• Audit sampling protocols consisting of:
▪ Sampling protocols (designed by a QP) sufficient to produce results that would be representative of the volume of excess soil that is being received from each source site; and
▪ A contingency plan to identify actions that are to be take in the event that audit sampling or other information identifies concerns with soil quality form a source site.
• Soil placement/segregation protocol sufficient to identify where excess soil from each source site has been place, such that it can be assessed if required.
d) The Applicant shall comply with all requirements of the NVCA and all other legal requirements affecting the subject site.
e) The Fill Management Plan must be submitted to the Chief Building Inspector for the Town of New Tecumseth at least one hundred and twenty (120) days prior to commencement of importation of fill. At least thirty (30) days prior to the commencement of the importation of fill, the Applicant shall enter into an agreement with the Town of New Tecumseth providing for the ability of the Town to enforce the terms of the Fill Management Plan and also to provide for payment by way of cash or letter of credit for any damage deposit provided for in the traffic and transportation management plan.
DATE: September 27, 2016