City seeks a permanent injunction on the dumping of landfill at the Air Park.



By Pepper Parr

BURLINGTON, ON.  July 22, 2013.  It is getting nasty out there.  And it is getting expensive but the city has taken the position that the dumping of landfill at the Air Park site south of Derry Road between Bell School Line and Appleby Line has to be stopped.

Were you to drive by this site today the elevation would be considerably higher. The owners of the air park have been dumping fill on their property for more than five years without obtaining a permit which the city believes they must do.

Last week the Air Park served documents on the city setting out an application they are making to Ontario’s Superior Court of Justice to have their rights, as they see them, clarified and enforced.   In a delegation to city council late in June, lawyer Glenn Grenier, representing the Burlington Executive Air Park, tried to tell Councillors that they had no rights as far as what is done at an Air Park.

City manager Jeff Fielding, on the left, making his views known to Air Park lawyer Glenn Grenier after a council meeting. City lawyers  stand to the right.

City manager Jeff Fielding was closed to incensed at the comments and on three occasions that evening  advised the Mayor to send the delegation packing.  After the council meeting Fielding had some choice words for Mr. Grenier.

Some saw that as a stall on the part of the Air Park.  The city would very much like to see the rights the Air Park claims it has judicially confirmed.  BUT – in the meantime – stop dumping landfill on the site and to make that point the city sued the Air Park seeking a permanent injunction.

Interestingly, the city filed its claim in the Ontario Superior Court in Toronto while the notice the Air Park served was filed at the Superior Court in Milton.

Can the two proceed at the same time in two different courts?  The lawyers will work that one out.  What is evident in all this is that the city is not stepping aside.  Nor is it waiting for anyone to do something for them.

Based on a voluntary decision not to haul landfill to the Air Park site you won’t see any King Paving trucks working this location.

A bit of positive news is the decision on the part of King Paving to voluntarily stop hauling fill to the site. Kudos to them for taking that position. City Manager Jeff Fielding publicly thanked King Paving for “doing the responsible thing at this time.”   This decision on the part of King Paving will certainly fracture their relationship with the Air Park.  There was a point at which the Gazette could not get a comment from King Paving without their clearing it with Vince Rossi, owner of the Air Park.

Based on the opinions of a respected environmental testing firm the city now knows there are  excessive levels of substances such as petroleum hydrocarbons, lead and zinc in some of the fill.  Based on that evidence the city wants:

A permanent injunction restraining the Airpark or anyone acting on their behalf from placing or dumping fill, removing topsoil or otherwise altering the grade or any other form of site alteration at the airpark;

An interim injunction, along the same lines as above;

An order requiring the airport to remove all fill deposited on the airpark lands that does not meet the Table 1 of Ontario Regulation 153/04 standards; and

Recovery of costs.

The city has also asked the Ontario Ministry of the Environment (MOE) to review the findings and take the appropriate action on behalf of Burlington residents and enforce any applicable ministry regulations against the airpark owner.

The city commissioned a review of the available environmental testing reports of the fill received at the airport amid growing concerns from residents and City Council.

The culvert shown here is reported to run the full width of the Air Park property with thousands of tons of landfill for which there are not adequate testing data draining to the culvert and into land on the Cousins Appleby Line farm and into the area water table.

According to the city’s Statement of Claim approximately 59% of the landfill dumped since 2011 is contaminated.  In a report from Terrapex environmental, the company that did the review of the documents that set out what is in the landfill, there are not nearly enough documents (reports on where the fill came from and what is in it) to be able to give an opinion on just what is in the landfill dumped before 2011.

The only way to find out what is in the fill is to drill a series of “bore holes” throughout the site and analyze the results.  The city feels it is up to the Air Park to do this testing at their expense and to make the results available to everyone.

The Air Park uses the fact that air parks are federally regulated – and on that point they are right; they also take the position that “everything” they do on their property also comes under federal regulation and this is where the city, the Region, the MOE and the federal department of transport bureaucrats have parted ways in terms of their thinking.

The Air Park has twenty days to prepare a statement of defense (they can ask for an additional ten days) and then the judicial process begins.  If the city can come up with evidence that the contaminants in that fill are of significant and truly endangers public health this whole business can be expedited and a hearing held that could result in an interim injunction until more facts are gathered.

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2 comments to City seeks a permanent injunction on the dumping of landfill at the Air Park.

  • Susan Lewis

    This is not the first time a municipality has had to face the airport dumping problem. See what’s happening in Tecumseth Pines, Ontario:

  • Roger

    We need to support our City for doing the right thing.
    The Burlington Airpark and their contractor King Paving have imported contaminated fill onto their airport property, which is within the Greenbelt protected countryside. The review of their own data shows that much of the imported fill was contaminated.
    That is not allowed. They have broken the laws.
    We insist on a thorough sampling, testing and analysis of the landfill soils and groundwater to determine what contamination is present, how much, and what type. How badly has this landfill operation damaged our rural countryside, and is the health of the neighbours at risk?