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2007/04/11SPECIAL COUNCIL MEETING Wednesday, April 11, 2007 Order of Business and Agenda Package Niagara 7 alIs CANADA SPECIAL COUNCIL MEETING APRIL 11, 2007 Proposed Arena Development on Cytec Property PRAYER: Councillor Pietrangelo DISCLOSURES OF PECUNIARY INTEREST Disclosures of pecuniary interest and a brief explanation thereof will be made for the current Council Meeting at this time. DEPUTATIONS 1. Mike Cushman, Niagara Falls resident 2. Eric K. Gillespie, LL.B, Cunningham Gillespie, Representing UNITE HERE 3. Fred Sacco Representing the JR.C. Riverhawks 4. Paul Burns Representing Girls Minor Hockey Association 5. Laurie Primeau Representing the Stamford Skating Club 6. Mick Wolfe Representing the Recreation Committee and Chair of the Arena Community Fundraising Campaign PRESENTATIONS 1. David Schram,Urban and Environmental Management, Project Manager for Arena Development Project re: Background and Overview Arena Complex Project 2. Luciano Picconi, RCI Consulting, re: Brownfield Community Improvement Plan 2 3. Anton Marek, Cytec, Director, Site Remediation, Safety, Health Environment Geoff Westerby, Gartner Lee, Consultant to Cytec Dr. Glenn Ferguson, lntrisnik Environmental Inc., Consultant to Cytec re: Environmental Investigations and Results 4. Dr. Douglas Sider, Associate Medical Officer of Health, Niagara Region Public Health Department 5. David Schram, Urban and Environmental Management re: City's Peer Review Program REPORTS 1. Chief Administrative Officer CAO- 2007 -06, Response to Issues Raised by Unite Here, Proposed Arena Complex Site BY -LAWS The City Clerk will advise of any additional by -laws or amendments to the by -laws listed for Council consideration. 2007 -78 A by -law to adopt, ratify and confirm the actions of City Council at its meeting held on the 11 day of April, 2007 Detailed Agenda Special Meeting of City Council On the Proposed Arena Development on Cytec Property Wednesday, April 11` 2007 6:00 p.m. Council Chambers City Hall 1. Introductions Delegations and Presentations (John MacDonald) Dr. Douglas Sider Regional Associate Medical Officer of Health David Schram UEM, Project Manager for Arena Development Project Anton Marek Cytec, Director, Site Remediation, Safety, Health Environment Ken Milo Cytec, Environmental Coordinator Geoff Westerby Gartner Lee, Consultant to Cytec Dr. Glenn Ferguson Intrisnik Environmental Inc., (formerly Cantox Environmental Inc.), Consultant to Cytec Luciano Piccioni RCI Consulting, Consultant to City on the CIP Todd Davidson, McLean Kerr Solicitors to the City 2. Deputations See Order of Business 3. Background and Overview Arena Complex Project D. Schram) Arena Project Site Selection Process Why the Proposed Site? Arena Complex Development Schedule RCS Process and the Brownfield Statute Law Amendment Act, 2001 The Risk Assessment and Record of Site Condition Process (RSC) The Cytec Risk Assessment Process The Role of MOE and the RSC Process Official Plan Amendment No. 65 4. The Community Improvement Plan (L. Piccioni) Overview of CIP Relevance of the Proposed Arena Development 5. Presentation by Cytec Environmental Investigations and Results (A Marek, G. Westerby and Dr. G. Ferguson) Credentials of Consulting Team Program of Investigation for Entire Cytec Property Focus on the Proposed Arena Site Assessment of Potential Risks The Risk Assessment Conclusions The Record of Site Condition The Role of MOE and Peer Review in the Process Review of Issues Raised by Stakeholders 6. Dr. Douglas Sider 7. City's Peer Review Program (D. Schram) Summary of Peer Review Activity Peer Review Acres Associated (1997) UEM Peer Review Geotechnical Investigations (Jagger Hims) April 11, 2007 CA0- 2007.06 His Worship Mayor Ted Salci and Members of the Municipal Council City of Niagara Falls, Ontario Members: RECOMMENDATION: For the information of Council. BACKGROUND: Niagaraaalls CANADA Re: CAO- 2007 -06 Response to Issues Raised by Unite Here Proposed Arena Complex Site On January 22, 2007, Mr. Eric Gillespie, a lawyer representing Unite Here raised questions regarding the suitability of the Cytec Site. Mr. Gillespie advised Council that the proposed Cytec Site is not approved for institutional uses such as day care facilities. At that meeting Staff clarified that the site is not intended to be used for a day care facility and that Cytec's risk assessment did not request approval for such a use that was never contemplated. Council passed a motion that the "City's consultants report back to Council regarding the issues raised by Unite Here This report addresses issues raised by Unite Here and includes a response prepared by Cytec. This report provides Council with an overview of the process completed to select the Cytec Site and the scope of investigations undertaken to assess the suitability of the site for the City's arena complex. Council will also be provided with a comprehensive presentation at the special meeting to be held on April 11, 2007 to review the proposed arena development on the Cytec property. THE ARENA SITE SELECTION PROCESS The process used to select the proposed Cytec Site for the arena complex was comprehensive and involved Council, arena user groups, community stakeholders and a Steering Committee, made up of appropriate Senior Staff and user group representatives. The four -step site selection process is described in the Discussion Paper entitled "Proposed Niagara Falls Arena Complex Site Selection Process" (May 2005). The proposed process, as well as the type and priority of evaluation criteria (32 criteria used) were accepted by the Ar rta Development Steering Committee at its October 18, 2005 meeting and then co d and approved by Council on May 16, 2005. 4310 Queen Street, P.O. Box 1023, Niagara Falls, ON, Canada L2E 6X5 905- 356 -7521 www.niagarafalls.ca Working Together to Serve Our Community Office of the Administrate April 11, 2007 2 CAO- 2007 -06 The four -step arena site selection process involved: Step #1 Development and acceptance by Council of the site selection process (May 16, 2005) and consultation with stakeholders including a Public Open House (June 8, 2005). Step #2 Identification of the "Long List" of Potential Sites including an invitation to private property owners to offer potential sites. Eight potential sites (5 City owned and 3 private) were identified and the "long list" accepted by the Steering Committee on August 8, 2005. Step #3 Determination of the "Short List" which involved a comparative evaluation of the eight 'long list" sites. Environmental, technical, financial, and scheduling evaluation criteria were used to identify four "short list" sites (one offered and three City -owned sites). The Steering Committee reviewed the process and accepted the results on September 13, 2005. Step #4 Recommendation of the Preferred Site was completed in consultation with the Steering Committee. It involved a comparative evaluation of the four "short list" sites and concluded that the Cytec Site was the preferred location for the new arena complex. Council considered the recommendations of the Steering Committee and Staff to proceed with the development of the new arena complex at the Cytec Site. On November 7, 2005 Council approved the use of the Cytec Site subject to the following conditions as summarized: that a land transfer agreement be executed including appropriate indemnification to the City; that a Record of Site Condition be completed and acknowledged by the Ministry of the Environment (MOE); that site specific investigations be completed to further confirm its suitability; that the project development schedule be revised to a September 2008 opening. Reasons for Selecting the Proposed Site With the possibility of an arena development it was essential to initiate the rehabilitation of the former industrial property owned by Cytec. As per the Risk Assessment, comprehensive environmental investigations have concluded that there will be no risk to public health and safety if this property is used for the proposed arena uses. Other advantages of proceeding with the Cytec Site as the Preferred Site for the Arena Complex Project are as follows: It is offered at no cost to the City and Cytec has assumed full responsibility to complete the necessary investigations to address the Record of Site Condition requirements. Development of this site would be an impetus to further rehabilitation and development of the larger Cytec property and for other properties in this part of the City. The site is a former industrial property that has been vacant since 1992. An arena complex development with parking is a suitable redevelopment use for part of this property. April 11, 2007 3 CAO- 2007 -06 The Cytec property, including the preferred site, is located within the approved Brown Field Community Improvement Project Area which encourages reuse of the land for community facilities. This is consistent with City, Regional and Provincial policy and complies with the City's environmental due diligence process established in Official Plan Amendment No. 62 (approved by Council on February 6, 2006). Failure to develop this brownfield could, in essence, sterilize this area of the City from ever being rehabilitated. The development costs were estimated to be lower than the other three sites evaluated. The site size (15 acres) and configuration provides flexibility in the site design and are large enough to be considered for further arena expansion purposes. Independent and comprehensive environmental investigations, including a site specific risk assessment, concluded that the site is suitable for the proposed arena complex. There are no hazardous wastes or contaminant materials on the 15 acres being offered to the City. In the comparative evaluation of traffic, engineering and planning considerations by the respective City divisions, the Cytec Site ranked higher, or at least equal to the other three "short listed" sites. Adjacent land uses do not conflict with the proposed arena complex. The site does not require an Official Plan or zoning amendment. An arena is a permitted use for the site. Access roads have the capacity to accommodate forecasted traffic increases resulting from the arena complex. The Region has agreed to improve the Stanley Avenue/Thorold Stone Road intersection and extend Thorold Stone Road to serve the site. The Region moved this project forward because of the selection of the Cytec Site for the arena development project. Community Consultation The process of site selection and the arena design program involved over 70 contacts with user groups, interested citizens and government agencies. A Public Open House was held on June 8, 2005 and community of newsletters providing project updates have been distributed in the community. The Arena Development Steering Committee and a Capital Campaign Committee, which was subsequently formed, have worked closely with the City in the project. Community and government agency (MOE, Region, Ontario Hydro, City) input has been supportive to the need for a new arena complex and its establishment at the Cytec Site. Arena user groups continue to urge the Project Team to expedite the schedule and complete the project. April 11, 2007 4 CAO- 2007 -06 The Cytec Record Site Condition Process Following the approval by City Council in November 2005 of its intent to proceed with the Cytec Site, a comprehensive investigation and approvals process was initiated by Cytec at the preferred 15 -acre site to complete the Record of Site Condition (RSC) process. This has involved: Submission to MOE, for its review, a Risk Management Pre Submission Form. This submission described the proposed approach to the risk assessment with reference to the history of environmental site investigations and monitoring that have been undertaken at the site since 1985. The Form was submitted in November 2005 and accepted by MOE. Completion of a site specific risk assessment (SSRA) of the proposed arena use for the 15 -acre site. The SSRA evaluated risks to human health and ecological receptors. The SSRA also included a very detailed environmental assessment report that compiled the results of almost 20 years of ground water and soil testing at the site and the surrounding property owned by Cytec. The assessment considered a wide range of human receptors including the potential effects of different age groups, genders and site activities, including a day care facility, though such a use was never contemplated, site workers and arena users. The SSRA concluded that human health and ecological receptors were not at risk by using the proposed Cytec Site for these uses. MOE provided written notice on October 13, 2006 accepting Cytec's SSRA. Issuance by the MOE of a Draft Certificate of Property Use (CPU) on October2006. The Draft CPU was posted on the Environmental Bill of Rights (EBR) Registry for a 30 -day public comment period. Organization of a Public Information Session on October 18, 2006 to present to City Council and other interested parties the results of the SSRA, supporting site investigations and independent peer reviews. Presenters included Dr. Robin Williams (Regional Medical Officer of Health), David Schram (Project Manager), Anton Marek (Cytec), Geoff Westerby (Gartner Lee), and Dr. Glenn Ferguson (Cantox). Unite Here and Mr. Eric Gillespie were invited to participate. A representative of Unite Here read a short statement summarizing their issues. Issuance by the MOE of a Final CPU and posting its Notice of Decision on the EBR Registry on January 9, 2007. On January 23, 2007, an appeal to the MOE's decision to issue the Final CPU was filed by Mr. Mike Cushman, a local resident. A decision on the appeal was due from the Environmental Review Tribunal on February 22, 2007. The Tribunal advised on February 26, 2007 that due to other commitments the decision would be delayed. The Environmental Review Tribunal decision is imminent. The next step will be for Cytec to submit a Record of Site Condition (RSC) for the proposed arena site. The final step is the acknowledgment of the RSC by MOE. This will satisfy an important Condition of Council's November 2005 approval. These final steps are expected to be completed by May 2007. April 11, 2007 Independent Peer Review 5 CAO- 2007 -06 The environmental investigations completed the Cytec Site and Record of Site Condition (RSC) process has been subject to comprehensive and independent peer review. These investigations include: The Ontario Ministry of the Environment (MOE) has been involved in the monitoring, review and approval of investigations undertaken at the Cytec property since 1985. The MOE is involved and must be satisfied at each step in the RSC process. MOE also considers input from the public as part of its review. MOE experts, including outside independent experts working on MOE's behalf, review the risk assessment and supporting technical studies against comprehensive Provincial regulations and rigorous scientific standards. Only after these reviews are complete and community input considered does the MOE decide on the application. This was the process followed by MOE leading to its decision to approve the SSRA on October 18, 2005 and issue the final Certificate of Property Use (CPU) on January 9, 2007. The Environmental Review Tribunal is an independent Provincial board that considered appeals to MOE decisions. The Tribunal is mandated to review MOE decisions according to specific tests. The Tribunal is currently reviewing the appeal to MOE's decision to issue the final CPU. A decision is imminent. The City requested in July 2006 that Dr. Robin Williams review the need for a community health study to assess the potential for human health risks of the Cytec Site. Dr. Williams advised the City by letter dated July 28, 2006 that the environmental assessment conducted for the proposed arena is the "...mechanism best suited" to answering the question of risks to human health and the surrounding neighbours. Dr. Williams also noted that the environmental assessment is "...an accepted scientific process which has worked well in many other areas A copy of Dr. Williams' letter is attached to this report. Dr. Williams attended the October 18, 2006 City Council Information Session and presented her review and answered questions from Council. Dr. Williams' delegate will also attend the April 11, 2007 Special Council Meeting. The City has retained independent experts to review the remedial plans proposed by Cytec. Acres Consulting completed a technical review of site remediation plans proposed by Cytec. This review also included a public meeting held on November 21, 1996. Acres recommendations were adopted by Cytec to complete remedial and monitoring programs for the property. Urban and Environmental Management (UEM) completed peer review on behalf of the City. This involved the review of historical documentation prepared by Cytec and a review of the Pre Submission Form and Site Specific Risk Assessment prepared by Cytec. UEM has also reviewed the process with MOE and has, through the City, provided input to Cytec. It is UEM's conclusion that the proposed Cytec Site is a suitable location for the arena complex, the Cytec has fully complied with all Provincial regulations and guidelines and that the proposal conforms to City requirements. Jagger Hims Ltd. completed comprehensive geotechnical investigations at the proposed Cytec Site in 2006. This work involved the drilling of 32 boreholes and soil sampling throughout the site. The geotechnical work confirmed the suitability of the Cytec Site for the proposed arena use. April 11, 2007 6 CAO- 2007 -06 Thousands of soil and water test, which examined many different chemical parameters have been completed by independent laboratories. These laboratories are certified by the MOE and are independent from the consultant teams. The results of the laboratory testing were provided to MOE and others for review and were included in the risk assessment. The risk assessment/RSC process followed by Cytec has been determined by others to be complete and comprehensive. It is a process established by Ontario regulation (the Brownfield Statute Law Amendment Act, 2001) and it is a mandatory requirement when a change in land use to a more sensitive use (i.e., from industrial to commercial) is proposed. The environmental tests for site acceptability are specific and require a comprehensive assessment. There are no other processes that could have been followed by Cytec. Review of Unite Here Concerns Unite Here is a trade union formed in 2004 after the merger of the Union of Needle trades, Industrial and Textile Employees and the Hotel Employees and Restaurant Employees International Union. Unite Here has no prior record of environmental activism or expertise. Unite Here and their representatives have identified concerns with the proposed site for the arena complex. On June 22, 2006, a letter from Unite Here identified several concerns with the proposed site. Unite Here suggested that the City should retain independent reviewers, that the City might proceed with the arena development before MOE approvals are received, that there was coal tar present on the site, that were other options for the arena site and that City Staff need to cooperate fully with Unite Here information requests. Council was provided with a response to Unite Here's letter on July 10, 2006 (attached). It was noted in that response that the coal tar was removed by Cytec in 1996 in consultation and with the approval of MOE. The other concerns raised by Unite Here were addressed to the satisfaction of City Staff and Council. On September 20, 2006, Mr. Eric Gillespie, Solicitor for Unite Here, provided for Council's consideration a presentation entitled "Potential Human Health Concerns at the Proposed Twin Pad Arena Site Mr. Gillespie relied on a letter from Dr. Derek Ford, a Professor of Geography and Geology, dated September 20, 2006. Dr. Ford's analysis was based on "viewing the site through the chain fencing." This presentation cautioned the City on proceeding with the proposed arena on the Cytec Site. Unite Here suggested that sufficient tests had not been completed at the Cytec Site and that further investigations were required to assess the potential human health impacts. Unite Here described a situation in the City of Orillia and suggested that Niagara Falls could learn from these experiences. Unite Here concerns of September 20, 2006 were addressed at the Council Information Session on October 18, 2006. It was reported that the matters raised by Unite Here were fully addressed in the SSRA and that the Orillia experience was not analogous to the Niagara Falls situation because Orillia had chosen their site prior to engaging in any risk assessments. On January 22, 2007, Mr. Eric Gillespie offered to Council a presentation entitled "Issues for Children at Proposed Twin Pad Arena Site This presentation stated that an intended use for the Cytec Site was a day care facility and that the application for this use was rejected by MOE. Unite Here's presentation also noted that "there was no assessment of many contaminants at the site including lead and thallium The presentation stated that Cytec, the City's environmental consultant and City staff did not identify this problem. Unite April 11, 2007 7 CAO-2007-06 Here also suggested that MOE agrees with the assessment that a day care should not be located on the Cytec Site and rejected the proposal to include this type of facility. Cytec has responded to Unite Here's concerns by letter of January 23, 2007 (attached). The Cytec letter confirms the response provided by City Staff at the January 22, 2007 Council meeting. Cytec notes: Conclusions At no time was a children's day care facility proposed for the Cytec property. The site specific risk assessment process did assess the risk of the most sensitive receptors including a young child and included a day care centre scenario as part of the evaluation. The Cytec risk assessment concluded that there are no health concerns if a day care facility was located at the proposed arena site. This conclusion lends confidence that operation of an arena represents no risk to human health. The site specific risk assessment was prepared to determine the suitability of the Cytec Site for the arena complex which is considered under the Ontario regulations as a "commercial /community use MOE approved the site for the arena use which is the only use proposed. Unite Here is incorrect in its comment that chemicals such as thallium and lead were not evaluated in the risk assessment. These and many other chemicals were evaluated and the results provided in the site specific risk assessment and supporting documentation. Unite Here has identified concerns with the proposed Cytec Site and responses to these concerns were provided by Cytec and the City. The City has met with Unite Here to review their concerns and relevant information made available to Unite Here representatives. In each and every instance the concerns of Unite Here have been determined not to be relevant to the City's process, were often based on "preliminary reviews" or it was determined that the suppositions by Unite Here were incorrect. City staff and our consultants continue to be confident that the proposed Cytec Site is the most suitable location for the proposed arena complex. Peer reviews completed by other independent experts support these conclusions. The site has been determined to be an environmentally acceptable location and with the dismissal of the appeal a Record of Site Condition will be forthcoming. This will satisfy the condition of Council that a Record of Site Condition be completed and acknowledged by the Ministry .f the Environment. Respectfully submitted: 07 MacDonald, Chief Administrative Officer April 11, 2007 8 CAO- 2007 -06 Attachments: 1. R- 2005 -41, Arena Complex Development Steering Committee Terms of Reference 2. R- 2005 57/58, Selection of Preferred Site for the Arena Complex Development Project Related Minutes (Nov. 7/2005) 3. Twin Pad Arena Newsletter 4. February 6, 2006 Council Minutes re: Community Improvement and Environmental Quality Policies of the Official Plan. 5. Inter Departmental Memorandum to Mayor Ted Salci and Members of Council from Dean lorfida "Response to Unite Here Canada's Letter ofJune 22, 2006" dated July 10, 2006. 6. Letter from Dr. Robin Williams, Regional Medical Officer of Health, dated July 28, 2006. 7. Ministry of Environment written notice of October 13, 2006 accepting Cytec's Site Specific Risk Assessment (SSRA). 8. Letterfrom Mr. Anton C. Marek, P.E. Director, Remediation, Cytec Industries Inc., dated January 23, 2007 responding to Unite Here deputation to Niagara Falls City Council on January 22, 2007. Niagara The City F al s F ls Canada1 His Worship Acting Mayor Vince Kerrio and Members of the Municipal Council City of Niagara Falls, Ontario Members: Membership: Community Services Department Parks, Recreation Culture 4310 Queen Street P.O. Box 1023 Niagara Falls, ON L2E 6X5 web site: www.city.niagarafalls.on.ca Tel.: (905) 356 -7521 Fax: (905) 356-7404 E -mail: akon©city.niagarafalls.on.ca To provide input on matters relevant to the project. August 8, 2005 Adele Kon Director The recommendation(s) contained in this report were adopted by City Council Re: 12- 2005 -41 Arena Complex Development Steering Committee Terms of Reference RECOMMENDATION: That the Terms of Reference for the Arena Development Committee be approved. BACKGROUND: The role of the Arena Development Committee (ADC) will be to participate in the planning and development as an advisory group providing input to City Council on behalf of the user groups and community otherwise referred to as "stakeholders." The ADC will be involved throughout the project beginning with the Site Selection and Architect Selection processes and ending at the official opening of the complex. Objectives: To act as a sounding board for all project discussions. To provide recommendations for the consideration of City Council. To provide effective representation to the project on behalf of user groups and community stakeholders, To identify issues that should be considered in the planning and development of the project. The Committee will be involved in hosting information sessions regarding the program of requirements, site selection and other project matters. The Committee will make recommendations to City Council throughout the project and keep them informed on the development of the project. Working Together to Serve Our Community Municipal Works Fire Services Parks, Recreation Culture Business Development Building By -Law Services R-2005-41 11 n August 8, 2005 •2- R- 2005 -41 City Staff Director of Parks, Recreation Culture (City Staff) Director of Building By -Law Services (City Staff) Director of Business Development (City Staff) Supervisor of Recreation Facilities (City Staff) Assistant Community Development Coordinator (City Staff) Project Consultant (Urban Environmental Management Inc.) City Staff will provide leadership throughout the project. Community Stakeholders: ADC membership will include one representative from the following Community Stakeholders: Niagara Falls Girls Minor Hockey Stamford Skating Club Recreational Minor Hockey Meetings of the ADC will be chaired by City Staff. An agenda will be established and distributed before each meeting. Meetings will be held as needed throughout the project. Prepared by: Respectfully submitted: 7 Rob McDonald Assistant Community Development Coordinator Recomm -.e by: Ad le Kon Director of Parks, Recreation Culture m John MacDonald Chief Administrative Officer RM/das S:1CouncihCouncil 200518- 2005 -41 Arena Development Committee Terms of Reference.wpd The City of Niagara Fall Canada Members: RECOMMENDATION: Community Services Department R- 2005 -58 Parks, Recreation Culture 4310 Queen Street P.O. Box 1023 Niagara Falls, ON L2E 6X5 web site: www.city.niagarafalls.on.ca Tel.: (905) 356 -7521 Fax: (905) 356 -7404 E -mail: akon@city.nlagarafalls.on.ca His Worship Mayor Ted Salci and Members of the Municipal Council City of Niagara Falls, Ontario November 7, 2005 Adele Kon Director The recommendation(s) contained in this report were adopted by City Council Re: R- 2005 -58 Addendum to Report R- 2005 -57 Selection of the Preferred Site for the Arena Complex Development Project That the 15 acre (6 hectares) property located within the former Cytec industrial property (4001 Fourth Avenue) offered at no cost to the City from Canadian Niagara Hotels be developed as the future site for the Niagara Falls Arena Complex, subject to the following conditions being met: 1. That a satisfactory memorandum of agreement be executed between the City and the "relevant parties" including Canadian Niagara Hotels and Cytec by December 31, 2005 that defines the respective roles and responsibilities of the three parties leading to the transfer of ownership. 2. That the City receive indemnification by the appropriate party(s) (i.e., Cytec and/or Canadian Niagara Hotels) from any responsibility and costs of any environmental issues that may arise from developing or using the Preferred Site. Indemnification should also be extended to cover any environmental effects/risks on the Preferred Site that may arise from adjacent lands that were used by Cytec for industrial purposes. 3. That Canadian Niagara Hotels provide to the City by September 2006, a Record of Site Condition prepared by a "qualified professional" declaring the Preferred Site as environmentally suitable for the proposed twin pad arena and ancillary uses such as parking and access roads. 4. That site specific investigations be initiated at the Preferred Site to further confirm the suitability of the Preferred Site for the proposed arena complex. The site investigations should proceed at the same time as the other recommendations in order to meet the project development schedule. 5. That the project schedule for the opening of the new Arena Complex be adjusted to reflect an opening of no later than September 2008. Working Together to Serve Our Community Municipal Works Fire Services Parks, Recreation Culture Business Development Building By -Law Services November 7, 2005 2 R- 2005.58 BACKGROUND: Staff met on November 1, 2005 with representatives of Cytec, Canadian Niagara Hotels, and the Ontario Ministry of the Environment (MOE) to discuss the process and schedule to obtain a Record of Site Condition (RSC) for the Cytec property including the 15 acre site being offered by Canadian Niagara Hotels for the new arena complex. MOE advised that as of October 2005, the schedule to complete the RSC process must now address relatively recent provincial requirements. This means that our previous understandings as to the time required to obtain environmental clearance and obtain ownership of the 15 acres site are changed. This will require that Recommendation No. 3 of Report R- 2005 -57 (November 7, 2005) be amended. A fifth recommendation addressing the arena complex project schedule has now been provided. It reflects the need for additional time to complete the RSC process prior to the transfer of ownership and facility construction commencing. There are no amendments to Recommendations No. 1, 2 and 4 of Report R- 2005-57. The recommended changes to the project schedule do not change staff's conclusion that the Cytec Site is the preferred location for the arena complex. It remains staffs opinion that development of the Cytec Site for a n arena c omplex r epresents a unique o pportunity to address a 1 ong t erm 1 and u se i ssue associated with this vacant property. The arena complex development is an important initiative to its future development for other more productive uses. The development of the arena complex also positively supports the City's application to secure a $2.5 million grant from the Federation of Canadian Municipalities, Green Municipal Funds Program. The MOE has indicated it will consider this a priority project in its review of the RSC process. Staff has reviewed the recommended changes to the project schedule with the public representatives of the arena user groups that sit on the Arena Complex Development Steering Committee. Although disappointed, the representatives understood the reasons for the delay and continue to support the selection of the Cytec Site for the arena complex. The Committee is anxious that this project proceed as expeditiously as possible and that the project be completed before September 2008. In conclusion, it is important to recognize that the RSC requirement represents a process and not an environmental issue. Staff is confident that the site is environmentally acceptable and poses no risk to public health and safety. Prepared by: espeytfullys •mined: 7 L/„,8 -1./ Rob McDonald Community Development Coordinator Recommended by: Adele Kon Director of Parks, Recreation Culture John MacDonald Chief Administrative Officer RM/das S: \Council\Council 2005\R- 2005 -58 Addendum to Report R-2005-57 Selection of the Preferred Site for the Arena Complex Development Project.wpd Niagara Car of s Niagara Falls Canada Members: RECOMMENDATION: Community Services Department R- 2005 -5T Parks, Recreation Culture Adele Kon 4310 Queen Street Director P.O. Box 1023 Niagara Falls, ON L2E 6X5 web site: www.city.niagarafalls.on.ca Tel.: (905) 356 -7521 Fax: (905) 356-7404 E -mail: akon@city.niagarafalls.on.ca His Worship Mayor Ted Salci and Members of the Municipal Council City of Niagara Falls, Ontario November 7, 2005 Re: R- 2005 -57 Selection of the Preferred Site for the Arena Complex Development Project That the 15 acre (6 hectares) property located within the former Cytec industrial property (4001 Fourth Avenue) offered at no cost to the City from Canadian Niagara Hotels be developed as the future site for the Niagara Falls Arena Complex, subject to the following conditions being met: 1. That a satisfactory memorandum of agreement be executed between the City and the "relevant parties" including Canadian Niagara Hotels and Cytec by December 31, 2005 that defines the respective roles and responsibilities of the three parties leading to the transfer of ownership. 2. That the City receive indemnification by the appropriate party(s) (i.e., Cytec and/or Canadian Niagara Hotels) from any responsibility and costs of any environmental issues that may arise from developing or using the Preferred Site. Indemnification should also be extended to cover any environmental effects/risks on the Preferred Site that may arise from adjacent lands that were used by Cytec for industrial purposes. 3. That Canadian Niagara Hotels provide to the City by March, 2006, a Record of Site Condition prepared by a "qualified professional" declaring the Preferred Site as environmentally suitable for the proposed twin pad arena and ancillary uses such as parking and access roads. 4. That site specific investigations be initiated at the Preferred Site to further confine the suitability of the Preferred Site for the proposed arena complex. The site investigations should proceed at the same time as the other recommendations in order to meet the project development schedule. Working Together to Serve Our Community Municipal Works Fire Services Parks, Recreation Culture Business Development Building By -Law Services November 7, 2005 2 R-2005-57 BACKGROUND: The arena complex site selection process was undertaken by the Arena Complex Development Steering Committee with assistance from City Staff. The selection process used to identify the preferred site was considered by the Steering Committee at its October 18, 2005, meeting. The Steering Committee agreed that the Canadian Niagara Hotels (CNH) Site was preferred and should be developed as the site for the twin pad arena complex. The Arena Complex Development Project City Council decided to replace the Niagara Falls Memorial Arena with a twin pad complex. On October 3, 2005, it was decided that the arena complex should include a 2001 seat arena and a smaller 250 seat arena. The project development schedule includes the following milestones: November 7, 2005 Council's consideration and approval of the preferred site. November 2005 to March 2006 Site specific investigations at preferred site and completion of facility design. June 2006 initiate facility construction. September 2007 complete construction and open new arena complex. The arena development schedule is attainable if there are no delays encountered at any stage or decision point during the project. The Arena Site Selection Process The five -step site selection process, including the type and priority of evaluation criteria was accepted by City Council on May 16 2005, and involves: Step #1 Development and Acceptance of Process (May 16, 2005) Step #2 Identification of "Long List" (August 8, 2005) Step #3 Determination of "Short List" (September 13, 2005) Step #4 Selection of "Preferred Site" (November 2005) Step #5 Confirmation of "Preferred Site" Suitability and Site Preparation (ongoing from November 2005) The selection process is a comparative evaluation which weighs the relative advantages and disadvantages of potential sites. The Step #4 evaluation compares a "short list" of sites and identifies a "Preferred Site" based on the relative importance of evaluation criteria. The Evaluation of "Short List" Sites The Steering Committee, at its September 13, 2005, meeting agreed to evaluate four "short list" sites that included one "offered" site and three City -owned sites: 1. 4001 Fourth Avenue, being the Cytec Canada Inc. property, proposed by Canadian Niagara Hotels (The CNH Site). November 7, 2005 3 R-2005-57 2. A City -owned property located on Mewburn Road and adjacent to the now closed Mountain Road Landfill Site (The Mewbum Road Site). 3. A City-owned property located on the north -west corner of McLeod Road and Montrose Road (The McLeod/Montrose Site). 4. A City -owned property located on the north -east corner of Montrose Road and McLeod Road, part of this site is occupied by the MacBain Community Centre and the skatepark (The MacBain Community Centre Site). A comprehensive comparative evaluation of the four sites concluded that the CNH Site was the preferred location to establish the new arena complex. Reasons for Selecting the CNH Site The proposed arena complex is an excellent use to initiate the rehabilitation of a former industrial property. Comprehensive environmental investigations have concluded that there will be no risk to public health and safety of using this property for the proposed uses. The other advantages of proceeding with the CNH Site as the Preferred Site for the Arena Complex Project are as follows: It is being offered by Canadian Niagara Hotels at no cost to the City. Development of this property could be an impetus to further development on this property and for other properties in this part of the City. The site is a former industrial property that has been vacant since 1992. An arena complex development with parking is a suitable redevelopment use for part of this property. The Cytec property, including the preferred site, is within the Brownfields Community Improvement Plan which encourages reuse of the land for community facilities. This is consistent with City and Provincial policy. The preliminary development costs are estimated to be lower than the other three sites. The CNH Site could be available to the City within the development schedule estimated if environmental clearances and site plan and building permit approvals are obtained no later than March 2006. The site size is significantly large to provide flexibility in the site design and could potentially be considered for future expansion purposes. Independent and comprehensive environmental investigations completed at this location concluded that the site is suitable for the proposed arena complex. There are no hazardous wastes or contaminant materials on the property being offered to the City. In the comparative evaluation of traffic, engineering and planning considerations by the respective City departments, the CNH Site ranked higher, or at least equal to the other three sites. November 7, 2005 4 R- 2005.57 Adjacent land uses do not conflict with the proposed arena complex. Access roads have the capacity to accommodate forecasted traffic increases resulting from the arena complex. The site can potentially be accessed from at least two points including Stanley Avenue and also from Fourth Avenue. The site can also be accessed by visitors to the City arriving from the QEW via Thorold Stone Road or Highway 420 via Stanley Avenue. Matters That Must be Addressed The CNH Site If it is decided to proceed with the Arena Development Project at the CNH Site there are several important matters that must be addressed. These are considered significant issues with the potential to delay the project if these issues are not resolved within the scheduling milestones established for this project. However, Staff is confident these issues can be resolved and that proceeding with this site is preferred compared to other siting alternatives. The disadvantages of proceeding with the CNH Site are outweighed by the many advantages of developing the property and the anticipated positive effect on the future development of the surrounding lands which have been idle since 1992. It is important, however, to identify the possible implications of selecting the CNH Site and moving forward without these issues being fully resolved. These issues include: It is Staff's information that the CNH Site is owned by Cytec. The ownership and any agreements with Canadian Niagara Hotels have not been made available or reviewed by Staff. Canadian Niagara Hotels proposes that it will purchase the entire 38 hectare (93acre) property and provide, at no cost to the City, a 15 acre (6 hectare) parcel. The entire property will not be purchased by Canadian Niagara Hotels until it is deemed environmentally acceptable. This process may take several more months and perhaps years. In the interim, Canadian Niagara Hotels proposes to lease the Preferred Site to the City at a nominal rate (i.e., $1 per year). Since this transaction involves a third party (i.e., the owner, Cytec) there is a need to develop appropriate agreements to ensure that the City can proceed with the project without undue risk. The City must immediately engage legal assistance to research the "ownership" issue and prepare the necessary agreement(s) to facilitate the land transfer. Comprehensive environmental studies have been completed throughout the Cytec property and within the Preferred Site offered by Canadian Niagara Hotels. Contrary to public perception, these investigations have concluded that the Preferred Site is environmentally suitable for the proposed arena project and is not a risk to public health and safety. However, there is a process that must be followed to receive the necessary environmental clearances (referred to as a Record of Site Condition). This process is the responsibility of Cytec and may take several months to complete. Other approvals, including site plan approval and building permit issuance are contingent on or conditional to receiving a Record of Site Condition. As noted, this process could delay the project to the extent that the September 2007 opening is not met. To a ddress the above issues and the potential risks of moving forward, it is recommended that a "memorandum of agreement" be developed between the City, Canadian Niagara Hotels and Cytec that defines the roles, responsibilities and commitment of the three parties. The matter of indemnification November 7, 2005 5 R•2005.57 by Cytec and/or Canadian Niagara Hotels from potential environmental risks must also be addressed. A Record of Site Condition must also be prepared by a "Qualified Professional" that declares the CNH site as environmentally acceptable for the proposed uses. Elimination of Other "Short List" Sites The major reasons for eliminating the other three sites are summarized in Table 1. It was determined that the other three sites had location and development disadvantages t hat would result in higher development costs or significantly delay the implementation of the project. The MacBain Community Centre Site might be a suitable location for a twin pad arena complex although the configuration of the site would require an innovative and more costly design and construction approach. Another major disadvantage of the MacBain Community Centre Site is that it would not allow any future expansion of the arena complex. It is also noted that a twin pad arena complex would dominate the site unless significant and higher cost architectural modifications were employed to blend the building into the contours of the site. The Next Steps Step #5 If the CNH Site is accepted by City Council, then other site development work must be undertaken. The site development work would usually be completed after the recommended "conditions" of a "memorandum of agreement" and a Record of Site Condition are satisfied. However, if this project completion schedule is to be met, this work must be undertaken at the same time. This additional work is necessary to confirm the suitability of the CNH Site for the proposed arena complex use and to ensure the project development schedule (i.e., Fall 2007 opening) is met. The site specific investigations and supporting activities include: Continue with the community, stakeholder and user group consultation process. This should include working closely with the Mayor's Disability Advisory Committee. Initiating the architectural program in anticipation that ownership issues and environmental clearance will be completed by March 2005. Complete a legal survey of the property to establish the specific limits of the 15 acre site, prepare a reference plan and review property title. Undertake geotechnical investigations to establish design parameters. Determine the need for any other site specific investigations including an archaeological assessment. Complete a traffic assessment to determine site access preferences and to establish project costs for any road improvements and related works. Undertake a topographical survey of the site and prepare a contour plan to the level of detail necessary to initiate servicing and design activities. November 7, 2005 6 R-2005-57 Prepare a conceptual site plan and initiate approvals in consultation with Planning and Public Works. Work closely with the Building Services to ensure the design meets requirements and potential review and approval delays are mitigated. Determine the need and timing for a consent to sever the Preferred Site from the larger property. Establish detailed and comprehensive site preparation, servicing and development costs. Erect a large public notice at one or more key locations about the site to identify it as the future location of the arena complex. Conclusion The Arena Complex Development Steering Committee concluded that the recommended site is the preferred and most suitable site for the twin pad arena and for any future expansion of the arena complex. The site is considered environmentally acceptable for the proposed arena use and is not a risk to public health and safety. Staff is confident that ownership of the property can be transferred to the City in a timely manner. However, it is essential that the City move quickly with Canadian Niagara Hotels and its generous offer of a 15 acre site to address the implementation issues and potential risk of delay associated with accepting this location as the preferred site for the arena complex. This means that "ownership" issues and the timing to receive environmental clearance be completed as soon as possible and no later than March 2005. If there are any delays in addressing any of the development matters with this site the objective to open the arena complex by September 2007 will not be met. Prepared by: Q Respectfully /17 submitted: Rob McDonald John MacDonald Community Development Chief Administrative Coordinator Recommended r 4 1 A.e a on Director of Parks, Recreation Culture RM/das Attachment 5:\Council\Council 2005\2- 2005 -57 Selection of the Preferred Site for the Arena Complex Devi "Short List" Site/Site Size Major Reasons for Eliminating "Short: List" Site 1.Mewburn Road (Part of Availability of site to meet project schedule potentially Township Lots 7 14) effected by need to obtain Niagara Escarpment 36 ha (90 acres) Commission approvals and likelihood of success; Would require an environmental site assessment to determine its suitability for the proposed use because of its location adjacent to the former Mountain Road landfill; Development of an arena complex at this site would have the least impact on the future development of surrounding properties; The site is located outside the Urban Area Boundary and outside the Urban Service Area. Extension of urban services may not be permitted and Regional approvals are required. 2. North West Comer of Highest comparative development cost ($2+ million); McLeod Road and Significant site preparation/development works required Montrose Road 6.1 ha for this site to be suitable could potentially delay the (15 acres) project schedule; Property recently re -zoned for commercial purposes establishing a higher value and potential uses for the property that would be compromised by using all or part of the site for an arena complex; Significant road improvements would be required on Montrose Road to accommodate traffic increases from the development of a twin pad arena complex. TABLE 1 November 2005 SUMMARY OF DISADVANTAGES "SHORT LIST" SITES ELIMINATED Proposed Niagara Falls Arena Complex (Step #4) Table #1 cont'd... November 2005 3. MacBain Community Centre Site 4.9 ha (12 acres) Site configuration, site contours and existence of other uses (i.e. skatepark and MacBain Community Centre) would impact the siting of a twin pad at this location; Site size and configuration would not permit future expansion to a four pad arena; Second highest comparative development costs; Significant road improvements would be required on Montrose Road to accommodate traffic increases from the development of a twin pad arena comple; Arena building would dominate site unless architectural modifications undertaken at significant extra costs. ir PARKS, RECREATION CULTURE MATTERS November 7, 2005 R- 2005.58 Chief Administrative Officer- Addendum to Report R- 2005 -57 Selection of the Preferred Site for the Arena Complex Development Project. The report recommends that the 15 acre (6 hectares) property within the former Cytec industrial property (4001 Fourth Avenue) offered at no cost to the City from Canadian Niagara Hotels be developed as the future site for the Niagara Falls Arena Complex, subject to the following conditions being met: 1. That a satisfactory memorandum of agreement be executed between the City and the "relevant parties" including Canadian Niagara Hotels and Cytec by December 31, 2005 that defines the respective roles and responsibilities of the three parties leading to the transfer of ownership. 2. That the City receive indemnification by the appropriate party(s) (Le., Cytec and /or Canadian Niagara Hotels) from any responsibility and costs of any environmental issues that may arise from developing or using the Preferred Site. Indemnification should also be extended to cover any environmental effects /risks on the Preferred Site that may arise from adjacent lands that were used by Cytec for industrial purposes. 3. That Canadian Niagara Hotels provide to the City by September 2006, a Record of Site Condition prepared by a "qualified professional" declaring the Preferred Site as environmentally suitable for the proposed twin pad arena and ancillary uses such as parking and access roads. 4. That site specific investigations be initiated at the Preferred Site to further confirm the suitability of the Preferred Site for the proposed arena complex. The site investigations should proceed at the same time as the other recommendations in order to meet the project development schedule. 5. That the project schedule for the opening of the new Arena Complex be adjusted to reflect an opening of no later than September 2008. David Schram, consultant on the project, indicated that the St. Catharines four -pad is smaller than 15 acres, he stated that being a square piece of property, a four pad could fit on this property. ORDERED on the motion of Alderman Pietrangelo, seconded by Alderman Volpatti to approve the report as recommended. Carried Unanimously PD-2005-83 Chief Administrative Officer Green Municipal Fund (GMF) for Brownflelds Redevelopment. The report recommends that Council support an application to the Federation of Canadian Municipalities (FCM) for funding under the Green Municipal Fund (GMF) to allow for the remediation of the Cytec lands at Thorold Stone Road and Stanley Avenue and, on the granting of such application, authorizing staff to negotiate and enter into an agreement. ORDERED on the motion of Alderman Pletrangelo, seconded by Alderman Volpatti to approve the report as recommended. Motion Carried with Alderman Wing and loannoni opposed. Alderman Kerrio vacated the Council Chambers. Februa 2006 Issue The project y Limitetl Ott* adaarE considerationts keji yearst co6i' a COMPLEX PROJECT w 1 1 ism er The Prof Welcome to the` up "date the common t In 2003 Study.s;= Th A De' 4 y� l Y 4�i°� i twin pact and a!s Pro pertyfrgrj jai AGARA [TAL.LS rena The Cuty pf Nia gar FaI1s aQd; e Arena Dev Committees' mould, Gikerto ackrlowled e-Ahe; very gen land Qona ion`of' 15 acres from Caria _diai) Niagara... Hotels so construct the =new twin pad The 15 acre site rs ?large `enoughtio conitctn angther 2 ice ads'k `fhe -f"i}i j.WiSc F f For more information contact: Rob McDonald Park Recreation Culture ect! the Twin Pad Arena Newsletter. We will be publishing this newsletter quarterly to progress of the project. araltarltIretained LeisurePlan International Inc. to undertake the Arena Facilities Feasibility ple V involved a comprehensive assessment of community needs and concluded 'es :W ;required in the short and longer terms. ive strategies to expand the number and quality of ice surfaces available to the 05, City Council directed staff to develop a site selection process to identify a pna complex. ittee reviewed 4 "short listed" sites to determine which would accommodate a hd to expand to a 4 -pad in the future. The Committee accepted the former Cytec :Hotels as the site for the new twin pad. erway being led by the selected Architectural team of Barry Bryan Associates is scheduled to open no later than September 2008. A lot of careful time and sure that this arena complex is one that can serve the needs of this community for Site Selected The Arena Development Committee selected the site shown (left) as the home for the new twin pad arena complex. The site is 15 acres allowing the City to expand the complex to 4 pads when needed. Environmental assessments have been conducted on the site showing that this site is suitable for this type of development. Developing the arena complex on this property will be a catlyst to future development in the downtown area. The primary access will be via Fourth Ave. until other accesses are available as part of the larger property development. Construction photos from September 1949 The new twin pad arena complex will replace the Niagara Falls Memorial Arena and provide the City of Niagara Falls with an additional ice surface The Memorial Arena has a number of memorial dedications to the City's Veterans. The new facility will incorporate these memorials as an integral component of the arena complex. The Memorial Arena is 57 years old this year and is beginning to show it's age. Approximately $1.5 million is needed to repair Niagara Falls Memorial Arena and it also consumes over 50% of the City operating budget for the 4 arenas. The Memorial Arena has been host to 2 CHL Memorial Cup Champion Niagara Falls Flyers' teams. The Flyers won the cup in both 1965 1968. There were many great players that were a part of the Memorial Cup champions but none greater than Derek Sanderson. For the next five years after the 1968 Memorial Cup win Derek was an integral part of the Boston Bruins team that won Stanley Cup championships in 1970 and 1972. So many great memories are stored in this great facility. The architects on the project will do their best to incorporate many of these great memories in their design. The Arena Develo The Architect mentCommitteereceived proposal packages 17archite architectural p p p p g ct Canada and the United States. Barry Bryan Associates (1991) Limited (BBA) was the unanimous choice after going through the interview process. BBA impressed the Committee with their extensive experience in arena design, their concern for minor details of the project and their Partnership with local Architect, Emilio Raimondo, of Raimondo Associates Architects Inc. The Architectural Teams will certainly be an asset to the arena project development and combined with their experience in recreation facilities, the community will be well served with our new twin pad facility. evelopmen r'Paul Burns N F G1rls Hecke John Castrilk Direc Butidi By -Law Serv John Elia'- Faciltfles Supe y sor Serge'Feffcetn Director'plirNd Business DeJelone.W,fi rT Vince S JCerria y ,?Iderman Rob McDon DevelopmentCbor'dinator Denyse Morrissey ry r p&or ofd Parks, Recreation Cuitute, Laurie Primeau" Staifo d SJ Club z'r iF Fred Sa&d Chzppa> Jr�C Da u z d „rs£hrarPr,it n�sult BBA Steering Committee The role of the Arena Development Committee will be to participate in the planning and development as an advisory group providing input to City Council on behalf of the user groups and community otherwise referred to as "stakeholders.” The Arena Development Committee has been involved throughout the project beginning with the Site Selection and Architect Selection processes and ending at the official opening of the complex. Membership of the Committee includes 5 City Staff representatives, I City Alderman, representatives from our 3 major ice user groups and a Project Consultant. The Committee meets as needed throughout the project. urther information on the project or how you can get involved, ple Recreation Culture at 905 -356 -7521 Ext 3340. i i9t�v41da .u`i4U.kEe'.suuSNS.yuft ...w.:tu.i vasl:;: u. 1 YZ1X.,.,ac l.at?al£dk 2 February 6, 2006 PLANNING MATTERS PD- 2006 -07 Chief Administrative Officer: Public Meeting, Proposed Amendments to the Community Improvement and Environmental Quality Policies of the Official Plan. File: AM- 28/2005 The report recommends that Council adopt the proposed amendments to the Community Improvement and Environmental Quality policies of the Official Plan, subject to comments that may be received at this public meeting, and that they be forwarded to the Region for approval. The Clerk advised that a public meeting was now being convened to consider amendments to the Environmental Quality and Community Improvement policies of the City's Official Plan. He advised that Notice was given through newspaper publication in accordance with the Planning Act and by prepaid first class mail on January 6, 2006. The Clerk informed that anyone wishing to receive notice of the Passage of the Official Plan Amendment shall leave their name on the sign in sheets outside the Council Chamber. Luciano Piccioni of RCI Consulting gave a presentation and outlined the proposed amendments to the Community Improvement and Environmental Quality policies of the Official Plan. He advised that the policies will held promote brownfield redevelopment while ensuring contaminated sites are properly remediated. The policies apply across the municipality and are some of the most progressive and highly protective policies in the Province. Mayor advised that failure to make an oral or written submission at this Public Meeting could result in the Ontario Municipal Board dismissing any referral it receives if the party has not made an oral or written submission at the Public Meeting. Mike Cushman, 6246 Arad Street, Niagara Falls, felt that testing should be done by the government not independent companies. Mr. Piccioni outlined the Provincial regulatory regime, the standardized reporting, MOE audits and the public environmental site registry. ORDERED on the motion of Alderman Volpatti, seconded by Alderman Campbell thatthe report be approved as recommended Carried Unanimously PD- 2006 -08 Chief Administrative Officer: Public Meeting, Zoning By -law Amendment Application, AM- 3612006, 5165 Palmer Avenue. Applicant: Dariusz Tymejczyk, Agent: Wayne Thomson. Proposed Medical Clinic. It is recommended that Council approve the Zoning By -law amendment application to permit the existing building to be used as a medical clinic; and the amending by -law contain provisions regulating access and landscaping at outlined in this report. The Clerk advised that a public meeting was being convened to consider a Zoning By-law Amendment Application for a Proposed Medical Clinic. He advised that Notice was given by First Class mail in accordance with the Planning Act on Friday, January 6, 2006 and by posting a sign on the property in question. He informed that anyone wishing to receive notice of the passage of the zoning amendment, or to participate in the site plan process, if applicable, should leave their names on the sign -in sheets outside the Council Chambers. The Director of Planning and Development reviewed the recommendations and provided the following information. Clerk's Department Inter Departmental Memorandum. To: Mayor Ted Salei Members of Council From: Dean Iorfida City Clerk Ext. 4271 Subject: Response to UNITE HERE! Canada's Letter of June 22 In the handout at last Council meeting was the attached letter from UNITE Here! Canada a trade union that has been in existence since 1995. Staff indicated at the time that the matter would return to this agenda. In response to UNITE HERE's letter, the City's consultant, Dave Schram of Urban Environmental Inc., has prepared replies to the various concerns raised. This writer has responded to UNITE HERE's request for information. Staff trusts that the attached memo answers the questions raised and allays concerns about site remediation, third party assessments and freedom of information requests. working Togeth to Serve Our Community The City F a Falls Canad� /1 Date: July 10, 2006 The June 22n 2006 letter from UNITE HERE! Canada identifies its concerns about the "....plans to locate the proposed twin pad arena on the former Cytec lands These concerns are summarized as follows: The potential that coal tar waste is present on the arena site and will impact public health and safety. The need for a third party independent environmental assessment to evaluate potential impacts. That "the entire 93 -acre Cyanamid/Cytec piece of land should be remediated to the highest possible standard" That the City may approve development on the site before the MOE has completed its review. The need for the City to have other options for the development of its arena complex and that the City appears to be moving quickly in the planning and decision making for the new arena complex The possibility that the project scope and size may be expanded. That the City cooperates fully on all information requests currently pending with City Departments. UNITE HERE! Canada has requested that the City advise how it will proceed. The following provides a response to the above concerns: CONCERN Coal Tar Waste on the Arena Site A coal gasification plant was operated on the property between 1912 and 1920. It was located in the north -west comer of the site. This arena was remediated in the mid- 1990's. The clean -up was fully documented by Cytec including written reports and video tapes. This documentation was submitted to the Ministry of the Environment. The site remediation process is described in the report entitled "Supplementary Phase II ESA, Cytec Niagara Fortner Plant Site Arena, 14001 4 Avenue, Niagara Falls, Ontario The report was prepared by Gartner Lee Limited and is dated March 23, 2006. The remediation of the former coal gasification plant was completed in the fall of 1996. Subsequent soil testing including a comprehensive risk assessment of the proposed arena site did not identify any evidence that coal tar wastes were present within the proposed arena site. CONCERN— The Need for Third Party Assessment The City agrees with UNITE HERE! Canada of the value of third party participation in the environmental assessment process. The City has been involved in reviewing the environmental and human health assessment investigations undertaken and completed by Cytec. For example: In November 1995, the City retained Acres Associated to complete an independent peer review of Cytec Canada's proposed remedial action plan for its entire property. Acres Associated continued its involvement on behalf of the City for several years. The City retained the GST Group and RCI Consulting to complete a community improvement plan (CIP) that included the Cytec lands. The GSP Group and RCI Consultants have considerable experience in the evaluation and development of "brownf:eld' properties. The consulting team also included Acres Consulting to evaluate and advise on environmental matters. The City also has retained Urban Environmental Management Inc. (UEM) to assist in the arena development project and advise on environmental matters. UEM has provided independent peer review services on the environmental conditions of the proposed 16.5 acre arena site, the risk assessment approach developed by Cytec for the proposed arena site and the risk assessment completed by Cytec's experts for the proposed arena site. UEM will continue to assist the City in these third party assessment roles as the environmental and human health risk assessment continues and when a record of site condition (RSC) is prepared. The City has also undertaken independent geotechnical investigations on the proposed arena site. It retained Jagger Hims Ltd. to complete this work. Jagger Hims has considerable experience in these matters and in the specialized areas of environmental assessment and site remediation. The City's approach to the development of the proposed arena site has been comprehensive. It has relied on the independent study and advice of its environmental experts and intends to continue with this approach. CONCERN The Entire Cytec Site Should be Remediated The City supports the remediation of the Cytec property so that it fully meets the provincial requirements. The Ontario Standards are comprehensive and have full regard for human health and safety and environmental risks. The City will not any deviation from., these established and accepted standards The City's current focus is with the development of the 16.5 acre proposed arena site. The environmental and human health risk assessment has been completed and submitted to the Ministry of the Environment (MOE) for review and acceptance. The City is waiting on the conclusions of the MOE's review before it commits to its next steps in the development of the proposed arena site. The conclusions reached by the risk assessment and environmental consultants engaged by Cytec are that the site is acceptable and poses no potential for human health or environmental risk. CONCERN Development Might Proceed Before the MOE review is Completed UNITE HERE! Canada expresses a concern that the Ministry of the Environment "...can audit RSC 's prepared by third party assessors, but such audits takes place after the initial approval of the RSC'. This is not the City's understanding of the RSC process as established in the "Brownfaelds Statute Law Amendment Act, 2001" and the "Brownfelds Regulation" of 2004 (O.Reg. 153/04) which amended Ontario's Environmental Protection Act (EPA). The "Brownfield" legislation was enacted to address the concerns noted by UNITE HERE! Canada. Since October 1, 2005 the preparation and filing of a RSC is mandatory when it is proposed to change a property use to a more sensitive use. The proposed property use change cannot be completed until the RSC has been reviewed and "acknowledged" by the MOE. This process is also supported by the City of Niagara Falls Official Plan. It is important to note that the City has not accepted the transfer of the 16.5 acre property proposed for the arena complex. City Council in its decision on November 7 2005 established several conditions to the development of the proposed arena site including that a Record of Site Condition be prepared by a "qualified person" and acknowledged by the Ministry of the Environment. The RSC process that is being undertaken is dictated by the "Brownfield Regulation" and is comprehensive and responsive to City Council direction. It is summarized as follows: A Risk Assessment Pre Submission Form was prepared and submitted to MOE for review and approval. This `form" is a detailed description of the risk assessment approach to be undertaken at the proposed arena site. The Pre Submission Form was accepted by MOE. A human health and ecological risk assessment for the proposed 16.5 acre arena site has been completed and submitted to MOE for review and acceptance. If accepted then the RSC process will be initiated. The RSC must be filed with MOE and the City. If acceptable then it will be acknowledged by MOE. Then, and only then, will the City consider the proposed site acceptable for an arena complex. As noted, the City has and will continue to be involved in the environmental and human health assessment process. CONCERN City Must Have Other: Options The City is moving carefully and diligently through a planning, design and decision process that was established at the outset of the project. The City completed an "arena complex site selection process" that identified and evaluated potentially suitable public and private sites. This process concluded that the Cytec property best met the requirements of the City. City Council approved, subject to conditions, the development of the site for the arena complex. The City continues to consider all information in its planning process including the potential that other sites may require further consideration. However unlikely, if this was required the City would not have to start over from scratch..." as noted by UNITE HERE! Canada. Considerable evaluation of potential sites was completed as part of the site selection process and this information would be relevant if other sites required consideration. The City is participating in the environmental assessment and now completing independent on- site investigations (i.e. the geotechnical assessment). If new or different information becomes available then it will be evaluated as part of its planning process. To date, the City is confident that the proposed 16.5 acre arena site is acceptable for the intended uses. CONCERN The Project May be Expanded The arena complex planning process established by the City is based on developing a property to establish and operate a four pad arena complex or its equivalent. The City is proceeding with the first phase of this development being a twin -pad arena complex. If Council decides to revise its arena development proposal then the process will consider the implications of the changes and its potential effects on the proposed area site. CONCERN That City Staff Cooperate Fully with all Information Requests Currently Pending. Unite Here! Canada made an application under the Municipal Freedom of Information and Protection of Privacy Act. As the attached correspondence indicates, the request from Unite Here is rather broad and encompassing. Under O. Reg 823/90 (as amended by O. Reg. 480/97) of the Municipal Freedom of Information and Protection of Privacy Act, a municipality can charge for search time and pages copied. Staff has suggested to Unite Here! Canada a more narrow information request will reduce the costs and time associated with their request. Niagara f Region PUBLIC HEALTH DR. ROBIN WILLIAMS Medical Officer of Health E3 Main Office 30 Hannover Drive St. Catharines, ON 12W 1A3 Phone: 905- 6683762 1- 800-263 -7248 Fax: 905-682 -3901 Branch Offices o Niagara Falls 5710 Kitchener Street Niagara Falls, ON L2G 101 Phone:905- 356 -1538 Fax: 005- 356.7377 o Sexual Health Centre Phone: 905-358-3636 Fax: 905 -358 -2717 o Wetland 640 King Street Welland, ON L3B 3L1 Phone: 905- 735 -5697 Fax: 905 735 -4895 o Sexual Health Centre Phone: 905 -734 -1014 Fax: 905 -734 -1770 o Fort Erie 43 Hagey Street Fort Erie, ON 12A 1W4 Phone: 905-871-6513 Fax: 905- 871 -3020 o Sexual Health Centre Phone: 905- 871 -6513 Fax: 905 -871 -3020 o St. Catharines Sexual Heath Centre 277 Welland Avenue 5t. Catharines, ON L2R 2P7 Phone: 905-688-3817 1-800-263-5757 Fax: 905- 688.6063 o Population Health Division Phone: 905-641 -2118 Fax: 905.688 -5100 o Emergency Services Division Phone: 905-641 -2218 Fax: 905 -688 -5079 509 Glendale Avenue East S5 4 Niagara on the Lake, ON LOS 1J0 o Community Mental Health 3550 Schmon Parkway Unit 2, Second Floor PO Box 1042 Thorold, ON L2V 417 Phone: 905-688 -2854 Fax: 905-684-9798 www.reglonalniaaara.on.ca An Accredited Public Health Department July 28, 2006 Mayor Ted Salci City of Niagara Falls 4310 Queen Street Niagara Falls, ON L2E 6X5 Dear Mayor Salci, Current Status: Building Community. Building Lives. RE: Former Cyanamid Plant 4200 Stanley Avenue and 4001 4" Avenue, Niagara Falls Further to our recent discussion on the above -noted subject, 1 have discussed this with appropriate members of my staff and offer the following comments. From a public health perspective, there are three Issues relating to this site: 1. The current status of the property, i.e., what contaminants are present, in what concentrations, does this pose a threat, what remediation measures (if any) are required? 2. Have historical emissions over the life of the plant resulted in health problems for residents in the adjoining community? 3. Is it possible to conduct an effective cancer study in Silvertown in order to provide a definitive answer to the suggestion by a resident that a cancer cluster exists? The Environmental Assessmeht (EA) conducted in relation to the proposed arena, recreational complex and commercial plaza is the mechanism best suited to answering this question. EAs includes a Human Health Risk Assessment, an approach which consists of four steps or phases: Problem formulation, where chemicals of concern, potential receptors and potential exposure pathways are identified. Exposure assessment, where an evaluation of receptor exposures to the chemicals of concern is formulated. Hazard assessment, where a determination of exposure limits for the chemicals of concern is made. Risk characterisation, where the predicted receptor exposures are compared to the determined exposure limits. When this has been completed, recommendations for remediation and /or risk management are then made. This is an accepted scientific process which has worked well in many other areas, both within Niagara and across Canada and the U.S. EAs must be conducted by qualified professionals and are reviewed in detail by the Ministry of the Environment. This review is rigorous and usually includes a peer review by a third party. It is not unusual for an EA to go through several iterations before receiving MOE acceptance. 1. Feasibility and Efficacy of a Community Health Study: Determining definitive answers to issue p2 is much more complex. It is important to understand that investigations intended to effectively correlate current health status with historical exposures to pollutants are extremely difficult to do and the findings are often inconclusive. In Silvertown, there are a number of reasons for this, for example: Multiple routes of exposure environmental exposure to industrial emissions can occur via the air, on surfaces, in foods, swimming or in drinking water. Inability to accurately assess the specific Intake from each of these different pathways ,compromises the process .of determining the degree of personal exposure. Multiple sources of pollutants a number of industries have operated in this area over the years and many generated a variety of emissions to the same air shed. In addition, the air shed receives pollutants from local traffic and domestic practices as well as long -range transportation from activities as far away as the Ohio valley. Ultimately, therefore, the air shed contains a complex mixture of chemicals and distinguishing the origin of a specific contaminant or attributing a specific proportion to one contributor may not be possible, particularly retroactively. External versus internal dose a measurement of an external exposure may not accurately reflect the true level of the internal dose, e.g. bioavailability can vary depending on whether the exposure pathway is Ingestion or inhalation. Furthermore, the metabolic breakdown of specific substances differs between individuals further reducing the correlation internal and external dose. Past and present exposures Some adverse health outcomes, e.g. cancer, have a long latency period. Consequently, length of residence in a study community becomes an important factor. Occupation and lifestyle (smoking, diet, etcl are also potential confounders and in some cases, these factors result in a small sample size which precludes the ability to conduct an effective study. Adequate qualitative data Air quality data for the neighbourhood around the Cyanamid plant at the time of operation is very limited. Any study therefore would have to be based on an exposure gradient, that is, using proximity to the plant. as an assumption of degree of exposure. Unfortunately, this requires an assumption that other sources of exposure are negligible and environmental exposure can rarely be studied effectively in this manner. In summary, it can be seen that a `health study" which could effectively measure adverse health effects resulting from the past industrial activities on the subject lands is not feasible. It has been our experience and that of other agencies that communities do not benefit when investigations of this nature fail to prove or disprove an association. Setting expectations which cannot ultimately be met only fosters suspicion and exacerbates fear in the affected community. 2. Feasibility and Efficacy of a Cancer Cluster Investigation: Most Public Health Departments have received more than one such request over the past 20 years. While it may be possible to conduct a defensible study in an occupational setting, where exposure to a specific contaminant may be intense and consistent, experience has shown that it is highly unlikely that the same conditions will be found in a residential setting. In order to reach conclusions.which would stand up to a rigorous review, the following conditions are required: A time -space cluster of a single type of disease (note that a mix of cancers cannot and should not be considered as a single disease) A plausible exposure pathway, and A large enough exposed population to allow for statistical analysis to be useful. In the absence of these conditions, the likelihood that an epidemiologic study will be useful is small. To the best of my knowledge, there has not been a situation in any Ontario community during the last 20 years which met these criteria. I should stress that this does not mean that the Public Health Department will not remain involved with the Silvertown community. We see the current EA as the most effective process for identifying and eliminating /managing potential health risks related to this site. I hope this summary Is helpful. Please contact me if you require any clarification. Sincerely, Robin C. Williams, MD, DPH, FRCPC Medical Officer of Health Clinical Professor, Dept of Paediatrics McMaster University robin.wi Iliams(dregional. niagara. on.ca Oct-13 -2008 15:32 Ministry of the Environment From -MIN OF ENVIRONMENT 301 St. Paul Street e' Floor. Suite 15 St. Catharines, Ontario L2R 7R4 Tel.: 905 704 -3900 Fax: 905 704.4015 October 13, 2006 Marc Macaulay, Site Manager Cytec Canada Inc. 9061 Garner Road, P.O. Box 240 Niagara Falls, ON L2E 6T4 Minlstere de I'Environnement 301 rue St. Paul 9e 6tage, bureau 15 St. Catharines (Ontario) L2R 7R4 T61.: 905 704-3900 T6160.: 905 704-4015 4805 704 4015 T-531 P.002/00 F-208 Ontario Re: Director Response to Risk Assessment for 4001 4tlt Avenue 4200 Stanley Avenue (Property) Risk assessment number 0703- 6HZKME SDB file number RA865 -06 This is to acknowledge your submission of a risk assessment report on 2006/08/15 regarding the Property to the Ministry of the Environment (Ministry). The Ministry'sreview of the risk assessment involved the following reports, documents and information /correspondence: "A Risk Assessment of the proposed Arena Complex at 4001 4 Avenue Niagara Falls, Ontario Revised Final Report by Cantox Environmental, dated August 15, 2006 Addendum to a Risk Assessment of the Proposed Arena complex at 4001 e Avenue, Niagara Falls, Ontario, by Cantox Environmental, dated October 6, 2006. Based on the documents provided to the Ministry as part of the risk assessment report, our reviewers can confirm that the risk assessment has been conducted in accordance with the Environmental Protection Act (the Act), Ontario Regulation 153/04 (the Regulation), and the associated guidance documents. By way of this letter 1 am providing you written Notice of the Director's Decision to accept the risk assessment 0703- 6HZICME relating to the Property in accordance with s. 168.5 of the Act. The ministry's review comments (attached) pertain to whether the risk assessment was conducted In a manner consistent with the Act, the Regulation, and associated guidance documents. Although some data, formulae and calculations were looked at during the review of the risk assessment, the Ministry does not independently verify data nor calculations, the quality of which are solely the responsibility of the Qualified Person who prepared the risk assessment. The Director's decision to accept the risk assessment is based on the information and the assumptions set out in the risk assessment report. It is also based on the assumption that the Property will be used as described in the risk assessment and that the steps outlined in the risk management plan will be fully implemented. Please be advised that a draft Certificate of Property Use that incorporates the risk management plan and additional conditions proposed by the Director will be posted on the Environmental Bill of Rights Registry for a 30 day public comment period. Following review of any comments received the Director will make a decision on issuance of the CPU (and conditions therein) which will be posted on the Registry. Oct -13 -2006 15:32 From -MIN OF ENVIRONMENT Please do not hesitate to call if you have any questions. Sincerely, c Paul Nieweglow Director for the purpose of s. 168.5 Environmental Protection Act Mr. Ferguson Cantox Environmental Inc. Niagara District Office Clerk, City of Niagara Falls Clerk, Regional Municipality of Niagara Mark Turner, RA Coordinator, SDB, MOE Ken Milo, Cytec +905 704 4015 T-531 P.003/006 F -20B Oct -13 -2006 16:33 From -MIN OF ENVIRONMENT +005 704 4015 T -531 P.004 /006 F-208 SCHEDULE A Dated October 10, 2006 Comments by Ministry of Environment On Risk Assessment for 4001 4th Avenue and 4200 Stanley Avenue Niagara Falls RA865 -06 (IDS ltd. No..0703- 6NZKME) The following are Ministry comments on the following Risk Assessment (RA): "A Risk Assessment of the proposed Arena Complex at 4001 4 Avenue Niagara Falls, Ontario", Revised Final Report by Canto* Environmental, dated August 15, 2006 Addendum to a Risk Assessment of the Proposed Arena Complex at 4001 4th Avenue, Niagara Falls, Ontario, by Cantox Environmental, dated October 6, 2006 General Comments The RA addresses a site that is considered environmentally sensitive based on high pH in soil (up to 12.4). Numerous organic and inorganic contaminants exceed MOE Table I Site Condition Standards for groundwater and soil. The site is intended for future commerciaV industrial/ community use. Direct exposure pathways for human receptors was assessed for 4 different receptor types following contact with exposed on -Site soils. COCs in soil and groundwater (i.e., arsenic, benzo(a)pyrene, and beryllium) were assessed via the inhalation pathways (as a result of migration from soil and groundwater to indoor air) for a future commercial land use scenario. The HHRA component identified that no human health risks were identified for exposures to on- Site chemicals under all assumed exposure conditions. The ERA identifies 13 inorganic parameters, and etectro conductivity (EC) and sodium absorption ratio (SAR), as COCs in soil and one COC (copper) In groundwater. Arsenic, copper, EC and SAR exceed Table 3 C/I standards for M/F soils. Risks to terrestrial plants, soil Invertebrates, robins and mice are considered. It is concluded that there are ecological risks to plants from EC and SAR, and possibly from Se at high pH, that require risk management. Property- specific standards (PSS) are defined which are generally at or below Table 3 standards, with the exception of beryllium, copper, EC and SAR. Proposed risk management measures include a clean soil cover in areas to be planted, and a clean soil root -ball zone for any deep rooted plants. 1 Oct -13 -2006 15:33 From -MIN OF ENVIRONIENT +905.704 4015 T -531 P.005 /006 F -208 Specific Review Comments The following comments address the specific issues that were raised previously, and the RA revisions to meet these concerns. Page references refer to the revised original report comment numbers are consistent with those used In MOD's July 26 2006 Schedule A review comments. 1) Comment #1 to 12 and 14 to 16 The revised version of the RA report satisfactorily addresses concerns identified in the July 26 2006 review comments.. 2) Comment #13: Section 53.4 Proposed Standards Protective of Ecological Receptors (page 81): The response provides an adequate explanation of the PSS calculation. However, a brief statement of calculation method in Section 5.5.4 would be appropriate, e.g., PSS were calculated as soil concentrations that give ER values of 1, using exposure equations outlined En Section 5.3, for each receptor species. This is a clarification that would help to improve the quality ofthe risk assessment but it does not impact on Its conclusions. 3) Addendum October 6, 2006: Based on the information provided, MOE reviewers accept the property specific standard for copper of 31 ug/L in groundwater. 4) Corn ment #17: Section 7.0 Risk Management Plan The purpose of a Risk Management Plan is to address the potential adverse health and ecological effects for those site specific parameters which exceed the prescribed tables for that site condition. The Risk Management Plan states that the proposed use for the study area is as "a site for a four -pad ice arena and associated parking areas" and as such should be reflected as recognized as a requirement condition of this property's future use in accordance with the legal agreement between the City of Niagara Palls and present property owner Cytec Inc. Details of the building locations services and parking lots and landscaping will be addressed as a condition of the Certificate of Property Use and will be coordinated with the areas where the COC's have been identified. It should be documented that while the Phase i1 report does identify elevated PAT-I's and inorganic parameters the Risk Assessment also identifies exceedances of PAH's (1.99 ug /g greater than Table 3 on page 31 of the Risk Assessment Table 3 criteria of 1.9 ug /g. The depth of this sample is.surficial between 0.05 m and 0.61 m and will be addressed with respect to the proposed building layout requirements as a condition of the Certificate of Property Use. The Se parameter which exceeds the Site Specific Standards will be addressed in accordance with the risk management plan as submitted with soil replacement. This Risk Management Plan and Ws application will be required to be addressed as a continuing condition of the Certificate of Property Use. The Risk Assessor reviewers have also identified concern for the presence of Arsenic(52.8 ug/g and Table 3 identifies the criteria of 50 ug/g). While As Is a concern both from an 2 Oct -13 -2000 15:33 From -MIN OF ENVIRONMENT Or 3 +906 T04 4015 T -531 P.006 /006 F-209 ecological and a human health risk the proposed Risk Management Plan of soil removal based on a phytotoxicity assessment will be undertaken to ensure those plants of concern are addressed. My recommendation is to accept the Risk Management Plan and issue the Certificate of Property Use is to ensure these conditions and other conditions as deemed appropriate by the Director issuing the Certificate of Property Use. Appropriate notification to the proponent of these recommendations is warranted. Any deep rooted vegetation which may planted at the site should be planted within a zone of soil which meets the recommended phytotoxicity benchmarks for EC and SAR (as outlined above). In general, where groundwater or sod is anticipated, a depth of at least 30 cm of clean soil (Le. meets Table 3 standards) will be provided. Where deeper rooted vegetation, such as shrubs and trees are planted, a depth of at least 1 meter of clean soil i.e. meets Table 3 standards) will be provided around the root ball and 30 cm of clean soil on the surface extending out to the mature drip line. These requirements will be addressed as conditions of the Certificate of Property Use. Conclusion The revised RA report has addressed all the comments raised following review of the RA submission. The Director may rely on the risk assessment standards that are proposed for the property. CYTEC INDUSTRIES INC. 5 Garret Mountain Plaza West Paterson, NJ 07424 973 -569 -4009 Mr. John MacDonald Chief Administrative Officer City of Niagara Fall P.O. Box 1023 4310 Queen Street Niagara Falls, Ontario L2E 6X5 Canada CYTEE Via e-mail mail January 23, 2007 RE: Niagara Hockey Arena Site Risk Assessment Dear Mr. MacDonald: This letter acknowledges receipt of the slides presented by Unite Here! concerning "Issues for Children at Proposed Twin Pad Arena Site" at the City council meeting on January 22, 2007. Clearly, there has been a misunderstanding. At no time was a children's day care facility being proposed for the Cytec property. As part of the risk assessment process, a day care scenario is often assessed to evaluate the risk to the most sensitive receptor, such as a young child. That was the sole purpose of the use of a day care scenario in the Risk Assessment prepared for the arena property. According to the regulations, a day care facility is not allowed as an approved use under the commercial/community use" definitions. Equally significant is the fact that the results of the risk assessment indicated no health concerns if a day care facility were sited at the proposed arena site. This positive result of this theoretical day care scenario assessment should give the City further confidence in the level of safety, health and environmental protections available to residents using the facility. As there was no intention to site a day care facility at the site, the exclusion of the day care facility by the Ministry of Environment (MOE) in the Certificate of Property Use (CPU) issued on January 8, 2007 is on an administrative basis, not on a health concern basis and is consistent with the property use definitions in MOE regulation (0. Reg. 153/04). Under these regulations, a day care facility falls under the category of "institutional use The intended use of the property for indoor recreational activities (an ice hockey arena) falls under the regulation category of "commercial/community use The Risk Assessment was prepared and submitted to justify the site use as "commercial/community use" and properly approved by the MOE for this use. The current approved risk assessment indicates that there are no concerns for use of the site for any of the proposed arena activities. Mr. John MacDonald 2 January 23, 2007 With respect to the comments raised by Unite Here! suggesting that the assessment did not evaluate chemicals like thallium and lead, they are incorrect. In fact, Table 1 -1 (Final Proposed Property Specific Soil and Groundwater Standards) in the risk assessment report, shows that thallium and lead were not only fully assessed for all proposed site uses, but property specific standards, as required by O. Reg. 153/04, were established for these two chemicals and many others. Cytec has followed all the necessary regulations in the preparation of this site for development of commercial /community use. We are in compliance with the MOE's requirements and are committed to the safe decommissioning of the Cytec lands in Niagara Falls. Please contact me should you have any questions regarding this submittal. Sincerely, CYTEC INDUSTRIES INC. Anton C. Marek, P.E. Director, Remediation niagara falls risk assessment 012307 Corporate Services Department Clerk's Division Inter Department Memorandum TO: Mayor Ted Salci Members of Council FROM: Dean Iorfida City Clerk Ext. 4271 RE: Environmental Review Tribunal Decision Niagaraj1alls CANADA DATE: April 11, 2007 In report CAO- 2007 -06, Response to Issues Raised by Unite Here Proposed Arena Complex Site, the following was stated on Page 4 of the report: On January 23,2007, an appeal to the MOE's decision to issue the Final CPU was filed by Mr. Mike Cushman, a local resident. A decision on the appeal was due from the Environmental Review Tribunal on February 22,2007. The Tribunal advised on February 26, 2007 that due to other commitments the decision would be delayed. The Environmental Review Tribunal decision is imminent. The Environmental Review Tribunal Decision was received late yesterday, after production of the Council agenda for the Special meeting. The Tribunal did not grant the Applicant (Mike Cushman) Leave to Appeal the M.O.E. Director's decision to issue Certificate of Property Use. The attached decision is lengthy. It can be summarized as follows; Mr. Cushman offered four grounds of appeal. Ground 1: Inadequacy of Air, Soil and Water Testing Findings of Tribunal: The Environmental Protection Act establishes a specialized regime for the redevelopment of brown fields where the risk assessment is both undertaken and certified by a qualified third party. The Applicant has not established exactly what inadequacies or deficiencies there were in the environmental testing conducted at this Site as compared to what is required under the legislative and regulatory scheme under the EP A and its regulations, or more generally as to what is required to appropriately protect the environment. The generality of the (applicant's) comments fail to identify specifically the problems at hand. Working Together to Serve Our Community Clerks Finance Human Resources Information Systems Legal Planning Development Ground 2: Concern About Soil Texture Findings of Tribunal: In this instance, Mr. Cushman is suggesting there is no soil testing or it is insufficient while there is considerable evidence submitted to the contrary. The Tribunal has considerable expert opinion responding to Mr. Cushman's questions. Ground 3: Incorrect Approach to Arsenic Levels The uncontradicted evidence is that the soil with elevated levels of arsenic has been removed and the levels at the Site presently are within regulatory limits. Ground 4: Soil Management Plan In light of the nature of the conditions in the CPU that requires a number of approvals by the Director, there is a soil management plan incorporated within the conditions of the instrument. la a Tribunal Ontario In the matter of an application for Leave to Appeal by Mike Cushman pursuant to section 38 of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28, as amended, with respect to a decision of the Director, Ministry of the Environment, under section 168.6 of the Environmental Protection Act, R.S.O. 1990, c. E -19, as amended, to issue Certificate of Property Use Number 3825- 6X9NHR dated January 8, 2007 to Cytec Canada Inc. in relation to a site occupying 6.69 ha of a 37.66 ha parcel of land owned by Cytec Canada Inc., located at 4001 4 Avenue and 4200 Stanley Avenue in the City of Niagara Falls, Ontario; and In the matter of a written Hearing. Before: Paul Muldoon, Vice -Chair Appearances: Mike Cushman Applicant, on his own behalf Frederika Rotter Counsel for the Director, Ministry of the Environment David Crocker Counsel for the Instrument Holder, Cytec Canada Inc. Dated this 10 day of April, 2007. Environmental Review Cushman v. Director, Ministry of the Environment Case No.: 06 -189 Environmental Review Tribunal Decision: Cushman v. Director, Ministry of the Environment Background: Reasons for Decision 2 06 -189 This application is brought by Mike Cushman "Applicant") for Leave to Appeal, pursuant to section 38 of the Environmental Bill of Rights, 1993 "EBR the issuance by the Director, Ministry of the Environment "MOE of Certificate of Property Use Number 3825- 6X9NHR (the "CPU with respect to a site situated on a larger parcel of property owned by Cytec Canada Inc. "Cytec located at 4001 4 Avenue and 4200 Stanley Avenue in the City of Niagara Falls, Ontario. The larger parcel of property occupies 37.66 ha, while the area subject to this proceeding (the "Site occupies approximately 6.69 ha of the southem portion of the property. The intended use of the Site is for a Community Ice Arena and Recreational Complex and related parking lots. The Site was formerly the location of manufacturing operations of Cyanamid Canada Inc. The original operations of the Site date back to 1907 and included the manufacture of calcium cyanamid, a nitrogen -based fertilizer. Operations expanded to produce other chemicals, including plastic resins. Large portions of process wastes were treated on -site. Historically, two ravines were located southeast and north of the plant that directed surface water flow to the Niagara River gorge, although these ravines began to be in- filled over time with soils, coke and limestone gravel materials used in the plant processes. Operations at the Site were terminated in 1993, and the removal of the equipment and demolition of the buildings were completed in the fall of 1996. The Site is currently vacant and covered by concrete slabs and demolition rubble from previously existing buildings. Part XV.1 of the Environmental Protection Act "EPA and Ontario Regulation 153/04 provide the statutory and regulatory framework for CPUs. The EPA provisions are attached as Appendix B. Generally speaking, the legislative and regulatory provisions provide a scheme for the rehabilitation and redevelopment of contaminated industrial sites, often referred to as "brownfields." A number of guidance documents have also been developed to further this scheme. Section 168.3 of the EPA establishes a publicly accessible Environmental Site Registry containing records of site conditions for specific properties in the province. Section 168.4 provides a list of criteria that must be undertaken before a record of site condition can be filed. Essentially, these provisions require, along with detailed information relating to the site, a phase one and phase two risk assessment demonstrating that the property meets the requirements of the Environmental Review Tribunal Decision: Cushman v. Director, Ministry of the Environment regulatory framework and that the assessment is "certified" by a "qualified person" (that is, a person who meets the qualifications as defined in the regulations). A phase one risk assessment is an assessment of the property to determine the likelihood that one or more contaminants have affected all or part of the property. A phase two assessment is an assessment to determine the location and concentration of one or more contaminants in the natural environment. Section 168.5 states that the Director can accept the risk assessment or provide reasons in writing to the qualified person why the risk assessment was not accepted. If the risk assessment is accepted, the Director then may issue a CPU that may require any action on the property that is necessary to prevent, eliminate or ameliorate any adverse effect, including installing any equipment, monitoring any contaminant or recording or reporting information for that purpose. The CPU could also require the property owner to refrain from using the property for any use specified in the certificate or from constructing any building specified in the certificate on the property. A brief chronology of the events leading to this proceeding can be summarized as follows: March 23, 2006 Cytec submitted the Site Specific Risk Assessment (SSRA) to the Director, MOE, with respect to the Site; April 24, 2006 The MOE provided review comments to Cytec on the SSRA; May 22, 2006 Cytec re- submitted the SSRA to the Director; July 25, 2006 MOE provided review comments to Cytec on the SSRA and indicated that additional information was required before the MOE could complete its review; August 15, 2006 The SSRA was certified by a Qualified Person; August 16, 2006 Cytec re- submitted the SSRA (including a detailed Risk Management Plan) to the Director; The Risk Management Plan was posted on the EBR registry for 30 days from August 22, 2006 to September 21, 2006; Two comments were received one from the Applicant, Mr. Cushman, and one from Unite Here! Canada, a trade union representing workers in the Niagara Falls area; October 13, 2006 the Director accepted the SSRA and notified Cytec of the acceptance in writing; 3 06 -189 Environmental Review Tribunal Decision: Cushman v. Director, Ministry of the Environment October 18, 2006 A second EBR posting advising the public that the SSRA had been accepted and that the MOE proposed to issue a CPU in relation to that property. The draft CPU was published on the EBR Registry for a comment period lasting until November 17, 2006; Three comments were received, one from each of Mr. Cushman, Unite Here! Canada, and Cytec. On January 8, 2007, pursuant to section 168.6 of the EPA, Paul Nieweglowski, Director, MOE, issued the CPU to Cytec in relation the to Site based on comments from, and in consultation with, MOE staff. On January 23, 2007, Mr. Cushman filed an application for Leave to Appeal the CPU. The Tribunal established February 8, 2007 as the timeline for the Director and Cytec to file their responses to the Leave to Appeal application. Grounds for Leave to Appeal: Mr. Cushman refers to four issues in his materials. The Tribunal will address the following grounds on which he submits that Leave to Appeal should be granted: 1. There has not been adequate testing of the air, soil and water at the site or off site. 2. There has been no information provided to support the conclusion that the soils across the entire site are medium fine texture. 3. The risk assessment uses an incorrect approach to arsenic levels. The assessment should have used the arsenic value for the most sensitive human receptor. 4. The CPU does not contain a requirement for a Soil Management Plan. Mr. Cushman did not submit any supporting materials except his comments during the EBR comment period and the submissions of Unite Here! Canada dated November 17, 2006 which were also submitted in response to the EBR posting. The Director submitted the following affidavits: Tim Krsul, Program Coordinator for the MOE, Operations Division; 4 06 -189 Environmental Review Tribunal Decision: Cushman v. Director, Ministry of the Environment Mark E. Turner, Risk Assessment Coordinator for the Standards Development Branch of the MOE; Richard Day, Project Coordinator (Acting) for the Niagara District Office for the MOE; Robert J. Slattery, Project Manager and District Engineer, Niagara District Office, MOE; and Paul Nieweglowski, Niagara District Manager, MOE. Cytec submitted the following Affidavits: Glenn Ferguson, Senior Scientist, Cantox Environmental Inc.; and Geoffrey Westerby, Principal, Gartner Lee Limited. Standing to Seek Leave to Appeal: Section 38(1) of the EBR states: Any person resident in Ontario may seek leave to appeal from a decision whether or not to implement a proposal for a Class I or II instrument of which notice is required to be given under section 22, if the following two conditions are met: 1. The person seeking leave to appeal has an interest in the decision. 2. Another person has a right under another Act to appeal from a decision whether or not to implement the proposal. 06 189 As described in Safety -Kleen Canada Inc. v. Ontario (Director, Ministry of the Environment) (2006), 21 C.E L.R (3d) 88 at 91 -92 (Ont. Env. Rev.Trib.), section 380) of the EBR establishes four requirements for standing to bring an application for Leave to Appeal: (1) the application must be brought by a person resident in Ontario; (2) the decision must be a decision whether or not to implement a proposal for a Class I or II instrument requiring notice under section 22; (3) the applicant must have an interest in the decision; and (4) another person must have a right under another Act to appeal the decision. Neither the Director nor Cytec dispute Mr. Cushman's interest in applying for Leave to Appeal this instrument. Cytec argues, as discussed below, that the Applicant only has standing to appeal 5 Environmental Review Tribunal Decision: Cushman v. Director, Ministry of the Environment a Class I or Class II instrument, namely the Certificate of Property Use, but does not have standing to appeal the risk assessment. Mr. Cushman meets the test for standing in this proceeding. Mr. Cushman resides in the community where the Site is located and has made submissions with respect to it in the past. He is a person resident in Ontario with an interest in the Director's decision to issue the CPU. Under paragraph 15 of section 5(1) of O. Reg. 681/94 made under the EBR, the Director's decision to issue the CPU to the Instrument Holder was a decision to implement a Class II proposal, and, as such, required notice under section 22 of the EBR. Under section 1390) of the EPA, had the Director refused to issue the instrument, the Instrument Holder would have had the right to appeal the decision, thus satisfying the second requirement under section 38(1) of the EBR. The Test for Granting Leave to Appeal: Section 41 of the EBR establishes a two- pronged test for granting Leave to Appeal. Section 41 states: Leave to appeal a decision shall not be granted unless it appears to the appellate body that, (a) there is good reason to believe that no reasonable person, having regard to the relevant law and to any government policies developed to guide decisions of that kind, could have made the decision; and (b) Submissions of the Parties the decision in respect of which an appeal is sought could result in significant harm to the environment. 06 189 The Director submits that appeals by the public were intended to be an exceptional remedy in those cases where the regulator has patently failed in its public duty. The Director also submits that the appropriate standard, given the language and intent of section 41 of the EBR, is the "balance of probabilities." The Director further submits that there must be substantial evidence that the Director's decision was unreasonable. The Director further noted that: 6 Environmental Review Tribunal Decision: Cushman v. Director, Ministry of the Environment The Director submits that the second branch of the test cannot be met by the mere fact that the instrument in question was a Class I or II instrument and therefore prescribed for the purpose of section 38 of the EBR. Cytec's submissions essentially support the Director's submissions. Cytec submits that: Findings An applicant cannot simply raise questions in respect of a decision: he or she must supply evidence that the Director did not follow the applicable laws and policies. Where scientific evidence supports the decision of the Director, the applicant must present strong expert evidence to support his or her position. The first prong of the leave test, therefore, focuses on the reasonableness of the Director's decision; mere disagreement with the decision is insufficient to meet the test as a matter of law and there must be "good" reason to believe that the decision is not supportable. Satisfaction of the second prong requires a finding that the Director's decision could result in significant harm to the environment. "Significant harm" here requires evidence of severe adverse effects to the environmental media (i.e., land, air or water) that are not merely transitory. The leave to appeal test under section 38 of the EBR has been the subject of discussion in a number of recent Tribunal decisions. For example, see: Bogan v. Ontario (Ministry of the Environment) [2007] O.E.R.T.D. No. 12; Safety -Kleen Canada Inc. v. Ontario (Director, Ministry of Environment) (2006), 21 C.E.L.R. (3d) 88 at para. 17; County of Grey v. Ontario (Director, Ministry of Environment) (2005), 19 C.E.L.R. (3d) 176 "County of Grey and Simpson v. Ontario (Director, Ministry of Environment) (2005), 18 C.E.L.R. (3d) 123. These cases agree with the approach taken in Simpson at pp.127 -128 where the Tribunal states as follows: This section does not require that the Applicants establish that no reasonable person could have made the decision, or that significant harm will result. Instead, 7 06 -189 Cytec submits that the threshold which an applicant has to meet in section 41 of the EBR has been described by the Ontario Superior Court of Justice as "stringent." The case, Smith v. Ontario (Ontario Review Tribunal), (2003),1 C.E.L.R.(3d) 245 (Div. Ct.) is cited in support of this position. Further, Cytec submits that the application must contain a solid foundation with convincing evidence and substantial and relevant information. Cytec argues that expert evidence would be required where the applicant is contesting that the procedures followed by the MOE were scientifically unsound Environmental Review Tribunal Decision: Cushman v. Director, Ministry of the Environment the Applicants must show that it appears that there is good reason to believe no reasonable person could have made the decision in question, and that it appears that the decision could result in significant harm to the environment. While the two pronged test in section 41 is a stringent one, the standard of proof is a lower standard than a balance of probabilities, and must be applied in conjunction with the stated intent of the EBR to enable the people of Ontario to participate in the making of environmentally significant decisions by the government of Ontario (Vallentin v. Director (Ministry of the Environment), indexed as Haldimand Against Landfill Transfers (HALT) v. Ontario (Director, Ministry of Environment), [2005] 16 C.E.L.R (3d) 104); Lacombe Waste Services Ltd. v. Ontario (Ministry of Environment), [2005] 14 C E L R (3d) 47). It is sufficient for applicants to establish that their concems "have a real foundation sufficient to give them the right to pursue them through the appeal process." (Barker v. Ontario (Director, Ministry of Environment and Energy (1996), 20 C.E.L.R. (N.S.) 72 at para. 47). An application must be founded on a substantial and relevant information base (see for example, Friends of the Jock River v. Ontario (Director, Ministry of the Environment) (2002), 44 C.E.L.R. (N.S.) 69 at para. 3). In summary, it is not necessary at this stage for the Tribunal to determine whether the Director's decision was unreasonable, or whether significant harm to the environment will materialize. Instead, to be granted leave to appeal, the Applicants must show that it appears that there is good reason to believe no reasonable person could have made the decision in question, having regard to relevant law and government policies, and that it appears that the decision could result in significant harm to the environment. 06 189 In a recent decision, Dawber v. Ontario (Director, Ministry of the Environment), Case Nos. 06- 160- 181/06 -183, April 4, 2007 "Dawber"), the Tribunal further elaborated on the EBR Leave to Appeal test as Member Pardy stated at p. 8: The Tribunal agrees with the conclusions in Simpson and Residents that section 41 does not require Applicants to establish on a balance of probabilities that the Director's decision was unreasonable or that significant harm will result. Instead, Applicants must prove that "it appears ...that there is good reason to believe" that no reasonable person could have made the decision and "it appears...that the decision could result" in significant harm to the environment. The use of these additional words in the section has the effect of setting a threshold that is lower than the Director suggest. As held in Simpson and Residents, this threshold reflects a standard of proof for unreasonableness and significant harm lower than a balance of probabilities. The same conclusion can be expressed in an alternative way: Applicants must satisfy the section 41 test on a balance of probabilities, but what they must prove to that standard is that it appears there is a good reason to believe (that no reasonable person could have made the decision) in the 8 Environmental Review Tribunal Decision: Cushman v. Director, Ministry of the Environment first branch, and that it appears that the decision could result (in significant harm) in the second branch. As the Director rightly notes in his submissions, section 41 of the EBR requires that the decision as a whole be assessed against the test, and the ground or grounds that satisfy the first branch may be different from the ground or grounds that satisfy the second branch. Nevertheless, leave cannot be granted unless both parts of the test are satisfied. (See the extensive discussion of this point in County of Grey, supra, at pp. 197.) Further, in terms of the second prong of the test, Vice -Chair DeMarco, in County of Grey, supra, at pp. 204 -205), summarized the approach to this branch as follows: Generally speaking, environmentally inconsequential decisions are not subject to the leave to appeal process because they do not relate Class I or II instruments. The mere fact that an instrument has been classified under the EBR is a good starting point in undertaking the analysis for part two of the s. 41 test. However, the Tribunal must remain open to the possibility that, even though the type of instrument that is challenged is generally environmentally significant, specific conditions in respect of such an instrument may eliminate environmental harm from a facility by, using the air emission example, requiring a type of technology that results in "zero discharge" of contaminants into the air (assuming no other types of environmental harm were present). The Tribunal now proceeds to an examination of the evidence provided by the Parties regarding environmental harm. The recent Dawber decision, at p. 9, adopts the approach to the second prong of the test enunciated by Vice -Chair DeMarco in the County of Grey decision. Also, as noted above in the Simpson decision, the Applicant has the burden of establishing a substantial and relevant information base (Friends of the Jock River v. Ontario (Director, Ministry of the Environment) (2002), 44 C E L R (N S.) 69 at para. 3). Issue: Whether Mr. Cushman's application meets the two- branch test for Leave to Appeal as outlined in section 41 of the EBR. 1. First Branch of Section 41 Reasonableness (a) Ground 1: There has not been adequate testing of the air, soil and water at the site or off -site. 9 06 -189 Environmental Review Tribunal Decision: Cushman v. Director, Ministry of the Environment Discussion and Analysis: The first ground of appeal submitted by Mr. Cushman is that there has not been adequate testing of the air, soil and water at the Site or off -site. More specifically, he states: The proposed site is 15 acres in size. It is part of a Larger area owned by Cytec that totals 93 acres. There are residential homes in the immediate area. Water from the site is known to flow into both the Ontario Hydro canal and the Niagara River, which is a source of drinking water and flows into Lake Ontario. The testing done at the site and in the area surrounding the site has all been done by Cytec's consultant and has been very limited. Given the high level of industrial activity over many decades manufacturing hazardous materials such as cyanide, there does not appear to have been adequate soil, water or air testing to properly determine what exists at the site and what may be migrated or be migrating off of the site. 10 06 -189 The Director challenges this ground. First, the Director submits that this ground is a collateral attack on the Risk Assessment accepted in connection with the CPU, and an incorrect assertion concerning the contents of the CPU. More specifically, the Director submits that no appeal exists in respect of a Director's decision to accept a risk assessment under section 168.5 of the EPA. The Director further submits that a decision with respect to the acceptance of a risk assessment by the Director is not a Class I or Class II instrument for the purpose of section 380) of the EBR. Second, the Director argues that the Applicant did not submit any expert or credible opinion evidence on the adequacy of the testing that was performed and instead raised only expressions of concern and questions with respect to the adequacy of the testing and monitoring of the property. The Director submits that the testing of the air, soil and water was properly and adequately completed as part of the Phase II environmental site assessment "ESA Further, the Director submits that section 168.4 of the EPA and Part 8 of O.Reg. 153/04 stipulate specific minimum requirements for a Phase II ESA that a Qualified Person (as defined by Part 2 of O.Reg. 153/04) must meet. It is the Director's position that the content and accuracy of the Phase II ESA lies with the Qualified Person, who must, and did in fact, certify his/her work when filing the Record of Site Condition. Cytec also argues that this ground of appeal is a collateral attack on the risk assessment. Further, Cytec argues that the Applicant has failed to provide any expert evidence in support of his position. On the other hand, Cytec submits a number of experts have submitted evidence in Environmental Review Tribunal Decision: Cushman v. Director, Ministry of the Environment support of the position that there has been adequate testing of the site. In particular, Cytec relies on the evidence of Geoffrey Westerby, a Principal in the consulting firm of Gartner Lee Limited, that can summarized as follows: Findings: As part of the remediation activities undertaken with respect to the Site, approximately 140 monitoring wells have been installed on this property and adjacent properties; As part of the Phase II ESA done on the southern portion of this property, which includes the lands relating to this proceeding, 50 boreholes have been drilled; There are 33 groundwater monitoring wells installed in the southern portion of the property including the areas pertaining to the lands in question; Soil samples from the boreholes and wells were analyzed from a wide range of parameters to meet the requirements of O.Reg. 153/04 and are documented in the Phase II ESA report; Groundwater modeling was undertaken to assess groundwater flow to the Chippawa Power Canal and the Niagara River and this modeling indicated that the contaminant loadings from the southern portion of the Cytec property to the River and the Canal were very low and would not result in detectible changes in surface water of the River or the Power Canal and pose no concern for air quality. 11 06 -189 The first issue raised by both the Director and Cytec is that this ground for Leave to Appeal, as well as other grounds for Leave to Appeal identified below, focused on the risk assessment document and not the CPU, and as such, Ground #1 is not a valid ground since Leave to Appeal is only available with respect to the CPU. Both the Director and Cytec invited the Tribunal to make a finding that the risk assessment is not an instrument that is subject to appeal under the EBR. A risk assessment is not listed either as a Class I or II proposal under O. Reg. 681/94, and as such, it is not an instrument that is subject to a Leave to Appeal application. However, the fact that a risk assessment is not such an instrument does not mean it is completely unrelated to, or disconnected from, a CPU, which is an instrument subject to a Leave to Appeal application. The risk assessment provides the context, background and the informational and technical basis for the issuance of the CPU. Hence, there is a direct relationship between the risk assessment and Environmental Review Tribunal Decision: Cushman v. Director, Ministry of the Environment 06 -189 the CPU such that one will have to read the risk assessment to understand the context, technical basis and content of the CPU, including the teens, conditions and other measures incorporated into the CPU. For example, if there were risk management measures featured in the risk assessment that were not incorporated into the CPU, one could certainly foresee a situation where leave might be sought to appeal the CPU based on the findings in the risk assessment, and the fact that those findings had not been addressed in the CPU. In the case at hand, the Applicant argues that there is insufficient environmental testing of the Site, and one can assume that the argument that follows is that the Director was unreasonable in issuing the CPU in light of this insufficiency. Assuming for the sake of argument that this ground does relate to the CPU rather than solely to the risk assessment, there are two serious problems with this ground for Leave to Appeal. First, Part XV.1 of the EPA establishes a specialized regime for the redevelopment of brownfields where the risk assessment is both undertaken and certified by a qualified third party. Although the Director approves the risk assessment, this approval relates to whether the risk assessment conforms to the legislative and regulatory requirements and the guidance documents developed under that scheme. Hence, although Mr Cushman raises a number of both relevant and probing questions as to the adequacy of testing with respect to the air, water and soils both on and off -site, the first prong of the Leave to Appeal test requires that he show that it appears that there is good reason to believe no reasonable person could have made the decision in question. Thus, the Applicant has to demonstrate there was something that was specifically inadequate or deficient with respect to the testing having regard to what was required by the legislative and regulatory scheme governing this situation. For example, if the Applicant demonstrated that there was no testing, or that the testing which was undertaken was deficient in light of site specific needs of the area, or that testing protocols were not adhered to, or if he could in some other way demonstrate that the testing did not conform to what was expected or required, there may be an arguable point of whether a reasonable person could have made the decision in question. In this regard, the Applicant has not established exactly what inadequacies or deficiencies there were in the environmental testing conducted at this Site as compared to what is required under the legislative and regulatory scheme under the EPA and its regulations, or more generally as to what is required to appropriately protect the environment. Second, even if these hurdles were overcome, the evidentiary base for the application is minimal as compared to the expert evidence presented by the Director and Cytec. As noted above in the discussion on the leave test, an application for leave must be founded on a substantial and 12 Environmental Review Tribunal Decision: Cushman v. Director, Ministry of the Environment relevant information base. Mr. Cushman raises a number of questions in his application which draw on his submissions with respect to the EBR postings and the appended submissions of Unite Here! Canada. However, the submissions fall short of a "substantial and relevant information base" owing to the generality of the comments and failure to identify specifically the problems at hand. Although expert testimony would be preferable, it is not always essential in these circumstances. Member Bruce Pardy, in Davidson v. Director, Minister of Environment, September 1, 2006 (06 -040), at p. 13, noted the following: An Applicant for Leave to Appeal must provide a real and substantial information base. With respect to this particular issue, Ms. Davidson has done so by referring to Aquafarms' own consultant reports, which do in fact show a significant reduction in flow, possibly up to 90 percent. Since the validity and reliability of spring flow measurements in these reports have been put into question, it is uncertain whether spring flow has diminished over time or not. In the face of such uncertainty, the Tribunal finds that there is good reason to believe that no reasonable person could have issued the PTTW. Since changes to spring flow are unknown, the Tribunal finds that it appears that the decision could result in significant harm to the environment. 06 -189 In this case, the Applicant raises a number of questions and makes a number of points, without the benefit of expert assistance. Hence, where there are a number of Affidavits from both MOE and Cytec experts speaking to the issues on point, there has to be information more substantial than raising questions and issues, regardless of how sincere and even relevant those questions or issues may be. Based on the material submitted, the Tribunal finds that Mr. Cushman has not met the leave to appeal test for this ground, namely, that he has not established that it appears that there is good reason to believe no reasonable person could have made the decision in question. (b) Ground 2: There has been no information provided to support the conclusion that the soils across the entire site are medium fine texture. Discussion and Analysis: The second ground for Leave to Appeal put forward by Mr. Cushman is stated as follows: The issue of soil texture is an example of the lack of proper testing at or around this site. The Cytec risk assessment is based on the assumption that the soils at the site are all medium fine texture. However, there is no soil study or other documentation supporting this conclusion. The site is large and the soils in this area generally are not consistent. As well, because there has been a great deal of 13 Environmental Review Tribunal Decision: Cushman v. Director, Ministry of the Environment industrial activity soils have likely been compacted and materials may have been dumped that would further change the soil texture. Given that the outcome of the risk assessment could change if the soil texture was found to be different, proper testing and supporting documentation available for the MOE and public to review should be required before the risk assessment is approved. The Director argues that the CPU does not contain a conclusion that the soils across the entire Site are medium fine textured and that this phrase is not mentioned in the CPU or the EBR posting of the Risk Management Plan. As such, the Director contends that it is an invalid ground on which to seek leave to appeal the CPU. As with the first ground, the Director contends that the second ground is a collateral attack on the risk assessment and thus not a valid ground for Leave to Appeal. The Director also argues that the Applicant has not put forth expert opinion substantiating his concerns Finally, the Director argues that soil texture is measured as part of the Phase II ESA and that the responsibility for the ESA lies with the Qualified Person who must certify the work when filing the Record of Site Condition. Cytec submits that the expert evidence they submitted concludes that the grain size analysis confirmed that the soil is medium fine textured. Cytec submitted that: The Phase II Environmental Assessment, reports on over one hundred (100) boreholes and test pit logs that were prepared by experienced field geologists and technicians. The inspection of the soils encountered establishes that silty and clay soils predominate both the Proposed Arena Lands and the surrounding property owned by Cytec. Grain size analysis showed that 95.2 percent of the soil was finer than 75 micrometres which is well in excess of the 50 percent required in Section 42 of O.Reg. 153/04 to characterize the soil as "medium and fine textured 06 189 Cytec further argues that even if one assumes a more conservative course textured soil, only one additional chemical needed to be considered in the Risk Assessment and that chemical is Petroleum Hydrocarbon Fraction 3. Cytec states that only one sample exceeded the limit for course grain texture soil. Cytec relies on the opinion of Dr. Glenn Ferguson, a senior scientist with Cantox Environmental Inc. who conducted the Risk Assessment, that even if the soil had been characterized as course textured, which would not have been appropriate, it would have made no difference to the conclusions of the Risk Assessment. 14 Environmental Review Tribunal Decision: Cushman v. Director, Ministry of the Environment Findings: 06 -189 The primary concern of the Applicant with respect to this ground for Leave to Appeal is that there is no soil study or other documentation establishing the soil texture and that proper testing and supporting documentation available for the MOE and public to review should be required before the Risk Assessment is approved. The MOE submits that this ground for Leave to Appeal is a collateral attack on the Risk Assessment as opposed to a direct attack of the CPU. The Applicant's language certainly frames the issue as one pertaining to appropriateness of the approval of the Risk Assessment as opposed to an appeal of the CPU. However, leaving that issue aside, leave to appeal on this ground cannot be granted because the Applicant did not provide an adequate evidentiary or information base to support the contention that the soils across the entire site are medium fine texture. The material submitted by the Director and Cytec outline certain evidence concerning the soil texture. While the Applicant may vehemently disagree with the information provided and the conclusions drawn from it by the MOE or Cytec, he nevertheless has to demonstrate why it appears that there is good reason to believe no reasonable person could have made the decision in question. In this instance, Mr. Cushman is suggesting there is no soil testing or it is insufficient while there is considerable evidence submitted to the contrary. The question that must be asked is what is wrong with the soil testing and analysis such that no reasonable person could have made the decision in question? The Tribunal has before it a number of interesting questions by Mr. Cushman. On the other hand, the Tribunal has considerable expert opinion responding to those questions. In light of the evidence before it, the Tribunal cannot find that it appears there is good reason to believe that no reasonable person would have made the decision. As with the first ground for Leave to Appeal, the Tribunal finds that Ground 2 does not meet the first branch of the Leave to Appeal test. (c) Ground 3: The risk assessment uses an incorrect approach to arsenic levels. The assessment should have used the arsenic value for the most sensitive human receptor. The third ground for Leave to Appeal submitted by Mr. Cushman is: The property specific standard for soil is back calculated using the value from the most sensitive human scenario and adding the Ontario background concentration and still results in a value Less than the MOE's Table 3 standard of 50 µg/g which is protective of all potential human health scenarios. The property specific 15 Environmental Review Tribunal Decision: Cushman v. Director, Ministry of the Environment Findings: standard should be left at the value derived from the "most sensitive human scenario" as being protective of all potential human health scenarios. Discussion and Analysis: The Tribunal finds that the Appellant has not satisfied his onus of establishing that the first branch of the test for granting Leave to Appeal with respect to this ground has been met. The 16 06 189 The Director re- iterates the argument that this ground for Leave to Appeal is a collateral attack on the Risk Assessment and thus not a ground for Leave to Appeal the CPU. The Director further submits that the property- specific standard for arsenic in soil is based on a consideration of the most sensitive human receptor. The addition of background levels to the health -based levels is an accepted practice and is used by the Canadian Council of Ministers of the Environment. Cytec relies on the expert opinion of Dr. Ferguson to argue that the Risk Assessment uses a correct approach to arsenic levels and is protective of all potential human health scenarios associated with the planned uses of the Proposed Arena Lands. Further, Cytec cites Mr. Westerby's evidence in stating that, out of an abundance of caution, it delineated, excavated and removed to an approved landfill the area of soil on the west side of the Site with elevated arsenic levels. It further notes that the excavated area was backfilled with clean soil. Cytec now states that all of the 90 samples taken meet the requirements of O.Reg. 153/04 and arsenic levels are lower than the MOE Table 3 site condition standard. Hence, Cytec argues that the discussion of the treatment of arsenic levels is moot. Essentially, Mr. Cushman argues that the property- specific standard for arsenic levels in soils should be based on the most sensitive human receptor. It appears that Mr. Cushman is questioning the appropriateness of the standards or the basis upon which they are derived. Again, the Director argues that this ground for Leave to Appeal is a collateral attack on the risk assessment and that nevertheless the property specific standard is already protective of the most sensitive human receptor. Cytec argues that the risk assessment is protective of all human health scenarios. It also argues that this ground for Leave to Appeal is moot at any rate since the impacted soil from the Site has been excavated and removed and the present levels are within regulatory limits. Environmental Review Tribunal Decision: Cushman v. Director, Ministry of the Environment uncontradicted evidence is that the soil with elevated levels of arsenic has been removed and the levels at the Site presently are within regulatory limits. Ground 4: The Certificate of Property Use does not contain a requirement for a Soil Management Plan. Discussion and Analysis: Mr. Cushman's fourth ground for Leave to Appeal is as follows: In the Remediation/Construction section of the risk assessment (p. 49) limited discussion takes place of the "reasonable standard of care and personal protective equipment" employed by site personnel during remediation activities to limit exposure to contaminants via inhalation of dust. What is unknown are the specific protective measures that are being proposed to protect personnel at the site and to protect the residential areas around the site when construction and /or remediation is taking place. 17 06 -189 The Director argues again that this ground relates to the Risk Assessment and not the CPU and thus is not a proper ground for Leave to Appeal. Second, the Director argues that the Applicant's concerns about health and safety issues for personnel at the Site during the remediation activities is not within the purview of the Director and not the proper subject of a CPU, but is a matter for the Ministry of Labour under the Occupational Health and Safety Act. Both the Director and Cytec argue that the CPU does contain a soil management plan. They submit that section 4.3 of the CPU imposes a number of conditions addressing soil management issues including the requirements to submit the following for approval by the Director in relation to the location and testing of soil material to be removed from the Site prior to construction; landscape drawings and approximate soil removal areas; waste disposal activities of all excess materials; replacement soil analysis and assessment that the fill material is below the Site Specific Standards, among others. The Director and Cytec also refer to Conditions 4.4, 4.9, 4.10, 4.11 and 4.12 in support of this position. They submit that these sections require the development and implementation of a health and safety plan conceming soil management prior to the commencement of construction and address the need to ensure that no visible windblown dust leaves the property during construction activities. Cytec also argues that risks to off -site receptors from soil exposed during construction would be considerably less than those predicted for the on -site workers. Hence, it argues that people living or working in the community would have no health concerns associated with soils exposed Environmental Review Tribunal Decision: Cushman v. Director, Ministry of the Environment 06 -189 during the construction/remediation work. Finally, Cytec argues that the Applicant submitted no evidence to advance this ground for Leave to Appeal, while its expert evidence by Dr. Ferguson and Dr. Westerby stands for the proposition that there is a soil management plan in the CPU. Findings Mr. Cushman questions whether there is sufficient specificity in the CPU for measures to protect workers and the community during the remediation process by way of a soil management plan. The Director and Cytec argue that, first, there are such provisions within the CPU and that, at any rate, additional reviews or approvals are required by the Director with respect to soil management. At this stage, the Tribunal finds that there are provisions pertaining to soil management within the CPU. The Tribunal cannot, at this stage, determine the appropriateness or adequacy of those provisions other than to note the fact that they speak to the issues at hand. Essentially, they require reports to be drafted that are to address the issues in question, and it is up to the Director whether or not to approve those plans. The onus is on Mr. Cushman to identify how those provisions are sufficiently problematic as to meet the EBR test for Leave to Appeal; no evidence to that effect has been presented. Although Mr. Cushman raises concerns with soil management, the CPU does establish a process for those issues to be dealt with. If he wanted to challenge this process, the Applicant would need to be more specific with respect to his concerns. However, in this proceeding, these arguments were not raised. Instead, the Applicant has raised a ground for appeal alleging that the CPU does not contain a requirement for a Soil Management Plan. The Director essentially argues that, in light of the nature of the conditions in the CPU that requires a number of approvals by the Director, there is a soil management plan incorporated within the conditions of the instrument. Although the Tribunal recognizes the concerns by Applicant, the Applicant has not satisfied the EBR test for leave with respect to this ground. In other words, it cannot be said that it appears there is good reason to believe that no reasonable person could have made the decision. 18 Environmental Review Tribunal Decision: Cushman v. Director, Ministry of the Environment 2. Second Branch of Section 41— Significant Harm to the Environment In light of the fact that the first branch of the EBR test for Leave to Appeal has not been satisfied on any of the grounds in this proceeding, there is no need to discuss the second branch of the test pertaining to whether it appears that the Director's decision could result in significant harm to the environment. Appendix A List of Parties Appendix B Relevant Legislation Decision On Grounds 1, 2, 3 and 4, the Tribunal finds that the Applicant has not met the onus of establishing that there appears to be good reason to believe that no reasonable person, having regard to relevant law and government policies, could have made the decision to issue the CPU within the meaning of section 41 of the EBR. The Tribunal, therefore, does not grant the Applicant Leave to Appeal the Director's decision to issue Certificate of Property Use Number 3825- 6X9NHR. 19 Paul Muldoon, Vice -Chair 06 -189 Application for Leave to Appeal Dismissed Environmental Review Tribunal Decision: Cushman v. Director, Ministry of the Environment Applicant: Director: Counsel for the Director: Counsel for the Instrument Holder: List of Parties Mike Cushman 6246 Arad Street Niagara Falls, ON L2G 2Z6 Paul Nieweglowski Director, Section 168.6 Environmental Protection Act Instrument Holder: Cytec Canada Inc. Frederika Rotter Legal Services Branch Ministry of the Environment 135 St. Clair Avenue West, 10th Floor Toronto, ON M4V 1P5 David Crocker Davis Company LLP 1 First Canadian Place Suite 5600, P.O. Box 367 Toronto, ON M5X 1C7 20 06 189 Appendix A Environmental Review Tribunal Decision: Cushman v. Director, Ministry of the Environment Relevant Legislation Environmental Protection Act, R.S.O. 1990, c. E -19, as amended PART XV.1 RECORDS OF SITE CONDITION Environmental Site Registry 168.3(1) The Director shall establish, maintain and operate a registry known in English as the Environmental Site Registry and in French as Registre environnemental des sites. Purposes (2) The purposes of the Registry are: Appendix B 1. To allow persons to file records of site condition for the purpose of this Part. 2. To facilitate public access to information contained in records of site condition that have been filed under this Part and to other information filed in accordance with this Act and the regulations. 3. Such other purposes as are prescribed. Prohibition on certain changes of use 168.3.1(1) Subject to subsection (2), a person shall not, Exception (2) Subsection (1) does not apply if, (a) a record of site condition has been filed in the Registry in respect of the property under section 168.4; and (a) change the use of a property from industrial or commercial use to residential or parkland use; (b) change the use of a property in a manner prescribed by the regulations; or (c) construct a building if the building will be used in connection with a change of use that is prohibited by clause (a) or (b). 21 06 -189 Environmental Review Tribunal Decision: Cushman v. Director, Ministry of the Environment (b) the use specified under paragraph 3 of subsection 168.4 (2) in the record of site condition is the use to which the property is changed under clause (1) (a) or (b). Filing record of site condition 168.4(1) An owner of property may file a record of site condition in the Registry in respect of the property if all of the following criteria are satisfied: I. A qualified person has certified in the record of site condition that a phase one environmental site assessment of the property has been conducted. 2. A qualified person has certified in the record of site condition that, i. a phase two environmental site assessment of all or part of the property was conducted with respect to one or more contaminants, or ii. as of the certification date, no phase two environmental site assessment is required by the regulations for any part of the property and, in the opinion of the qualified person, it is not necessary for any other reason to conduct a phase two environmental site assessment for any part of the property. 3. If a phase two environmental site assessment was conducted but for only part of the property, a qualified person has certified in the record of site condition that, as of the certification date, i. no phase two environmental site assessment was required by the regulations for any other part of the property, and ii. in the opinion of the qualified person, it was not necessary for any other reason to conduct a phase two environmental site assessment for any other part of the property. 4. If a phase two environmental site assessment was conducted for all or part of the property, a qualified person has certified in the record of site condition that, as of the certification date, the property for which the phase two environmental site assessment was conducted meets, A. the applicable full depth background site condition standards prescribed by the regulations for all contaminants prescribed by the regulations, except for those contaminants specified by the qualified person, B. the applicable full depth generic site condition standards prescribed by the regulations for all contaminants prescribed by the regulations, except for those contaminants specified by the qualified person, or 22 06 -189 Environmental Review Tribunal Decision: Cushman v. Director, Ministry of the Environment C. the applicable stratified site condition standards prescribed by the regulations for all contaminants prescribed by the regulations, except for those contaminants specified by the qualified person, and ii. for each contaminant excepted by the qualified person from the certification under subparagraph i, A. a risk assessment was prepared for the contaminant with respect to the property for which the phase two environmental site assessment was conducted, B. the Director has accepted the risk assessment under clause 168.5 (1) (a), and C. as of the certification date, the property for which the phase two environmental site assessment was conducted meets the standards specified in the risk assessment for the contaminant. 06 -189 5. The record of site condition contains everything required by subsection (2) and has been completed in accordance with the regulations. Contents of record of site condition (2) The person who files a record of site condition in respect of a property shall ensure that, in accordance with the regulations, the record contains the following: 1. A description of the property. 2. The name of the person filing the record of site condition and the names of any other owners of the property. 3. The type of property use for which the record is filed. 4. Which standards prescribed by the regulations were applied for the purpose of the record of site condition. 5. A description of any soil removals or other action taken to reduce the concentration of contaminants on, in or under the property. 6. For each contaminant for which sampling and analysis has been performed, the maximum known concentration of the contaminant on, in or under the property as of the certification date. 7. A statement indicating whether a certificate of property use has been issued in respect of the property. 8. A list of all reports relied on by qualified persons in making the certifications referred to in subsection (1). 9. Such other certifications, information and documents as are prescribed by the regulations. Acknowledgment of filing (3) If a record of site condition is filed in the Registry under this section, the Director shall promptly give the person who filed the record of site condition a written acknowledgment in the form approved by the Minister. 23 Environmental Review Tribunal Decision: Cushman v. Director, Ministry of the Environment Date of filing (4) A record of site condition that is filed in the Registry under this section shall be deemed to have been filed in the Registry on the date specified in the acknowledgment given under subsection (3). Director's response to risk assessment 168.5(1) If an owner of property submits a risk assessment relating to a contaminant and the property to the Director, the Director shall, within the time prescribed by the regulations, Validity of decision Restriction (a) give the person notice in writing that the Director accepts the risk assessment; or (b) give the person notice in writing that the Director does not accept the risk assessment for reasons specified by the Director in the notice. 2001, c. 17, s. 2 (36). 06 -189 (2) A decision of the Director to accept or not accept a risk assessment is not invalid solely on the ground that the decision was not made within the time prescribed by the regulations. Certificate of property use 168.6(1) If a risk assessment relating to a property has been accepted under clause 168.5(1)(a), the Director may issue a certificate of property use to the owner of the property, requiring the owner to do any of the following things: 1. Take any action on the property that is specified in the certificate and that, in the Director's opinion, is necessary to prevent, eliminate or ameliorate any adverse effect, including installing any equipment, monitoring any contaminant or recording or reporting information for that purpose. 2. Refrain from using the property for any use specified in the certificate or from constructing any building specified in the certificate on the property. (2) A certificate of property use shall not require an owner of property to take any action that would have the effect of reducing the concentration of a contaminant on, in or under the property to a level below the level that is required to meet the standards specified for the contaminant in the risk assessment. 24 Environmental Review Tribunal Decision: Cushman v. Director, Ministry of the Environment Revocation or amendment (3) Occupants (a) alter any terms and conditions in the certificate or impose new terms and conditions; or (d) revoke the certificate. 06 -189 The Director may, on his or her own initiative or on application by the owner of the property in respect of which a certificate has been issued under subsection (1), (4) If a certificate of property use contains a provision requiring the owner of property to refrain from using the property for a specified use or from constructing a specified building on the property, (5) (a) the owner of the property shall ensure that a copy of the provision is given to every occupant of the property; (b) the provision applies, with necessary modifications, to every occupant of the property who receives a copy of the provision; and (c) the owner of the property shall ensure that every occupant of the property complies with the provision. Notice to prescribed persons If a certificate of property use is issued, altered or revoked under this section, the Director shall give notice of the certificate, alteration or revocation to the persons prescribed by the regulations. Prohibition on construction or use (6) Despite any other Act, if a certificate of property use contains a provision requiring the owner of property to refrain from using the property for a specified use or from constructing a specified building on the property, no permit, licence, approval or other instrument shall be issued to any person, under any provision prescribed by the regulations, that would authorize the person to use the property for the specified use, to construct the specified building or to construct a building that will be used for the specified use. 2001, c. 17, s. 2 (38). 25 Passed this eleventh day of April, 2007. First Reading: Second Reading: Third Reading: April 11, 2007. April 11, 2007. April 11, 2007. CITY OF NIAGARA FALLS By -law No. 2007 A by -law to adopt, ratify and confirm the actions of City Council at its meeting held on the 11 th day of April, 2007. WHEREAS it is deemed desirable and expedient that the actions and proceedings of Council as herein set forth be adopted, ratified and confirmed by by -law. NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE CITY OF NIAGARA FALLS ENACTS AS FOLLOWS: 1. The actions of the Council at its meeting held on the 11` day of April, 2007 including all motions, resolutions and other actions taken by the Council at its said meeting, are hereby adopted, ratified and confirmed as if they were expressly embodied in this by -law, except where the prior approval of the Ontario Municipal Board or other authority is by law required or any action required by law to be taken by resolution. 2. Where no individual by -law has been or is passed with respect to the taking of any action authorized in or with respect to the exercise of any powers by the Council, then this by -law shall be deemed for all purposes to be the by -law required for approving, authorizing and taking of any action authorized therein or thereby, or required for the exercise of any powers thereon by the Council. 3. The Mayor and the proper officers of the Corporation of the City of Niagara Falls are hereby authorized and directed to do all things necessary to give effect to the said actions of the Council or to obtain approvals where required, and, except where otherwise provided, the Mayor and the Clerk are hereby authorized and directed to execute all documents arising therefrom and necessary on behalf of the Corporation of the City of Niagara Falls and to affix thereto the corporate seal of the Corporation of the City of Niagara Falls. DEAN IORFIDA, CITY CLERK R. T. (TED) SALCI, MAYOR