Public still seeking answers over Picton Terminals’ activity

Story by Sharon Harrison
“We don’t know what we are giving up in these closed meetings,” said Ken Stewart with the County Conservancy, in response to yet another closed session at Tuesday night’s council meeting as it relates to the long-standing Picton Terminals saga.

“The public of the County don’t know what we are giving up in these negotiations, what are the compromises being made?”

Stewart and Ryan Wallach each voiced opinion and addressed numerous issues surrounding Picton Terminal’s activity noting it violates its legal non-conforming use of the port on Picton Bay.

Stewart addressed three aspects in his deputation, namely, the environment, infrastructure, and upholding the law, where he said, “Picton Terminals has shown, in the past, their complete disregard for regulation”.

“I believe the County has the right to create laws, bylaws and regulations, but to be effective, those laws must be enforced as without enforcement, society breaks down,” said Stewart. “This cannot continue and it is up to the County to strictly uphold the law with Picton Terminals.”

He said there is “significant public opposition” to the operation and “Negotiating with Picton Terminals in the absence of public consultation is not democracy,” added Stewart.

Picton Terminals and associated companies have been charged with many environmental offences, where among them Stewart cited a charge under the Environmental Protection Act in October 2016 for uncovered petcoke, a toxic substance and bi-product of the petroleum industry. In March 2017, they plead guilty to permitting waste deposits on land that was not a waste disposal site; March 2017 saw an oil spill originating from a docked barge in Picton Bay shutting down the water supply for Picton and Bloomfield.

He noted in November 2017, Environment and Climate Change Canada took samples of run-off from Picton Terminals which contained high levels of aluminum, chloride, iron, and elevated levels of cyanide.

According to Stewart, almost three years ago, Picton Terminals was ordered to build storm water mitigation works, but to date it has not been completed.

“Complaints of uncovered product (including gypsum) blowing onto neighbouring properties and into the bay persist today,” he said.

Noise issues were also highlighted by Stewart as a significant concern and a health hazard where he said noise generated by Picton Terminals’ operations reverberates to neighbouring properties from across the bay where he highlighted the excessive sound derived from large rocks being dropped into steel barges.

“With the escarpment as their backdrop, and the prevailing wind coming from the west across the water, the noise is amplified for those of us who live within meters of Picton Terminals.”

“It is as though there is a rock quarry operating across the bay, well, in my opinion, there is a rock quarry operating across the bay: daily blasting, rock extraction, shipments, that’s a rock quarry.”

Stewart also spoke to how expansion of Picton Terminals beyond what they are legally entitled to do would put significant strain on current infrastructure, i.e. an already severely deteriorated County Road 49.

He noted how in most cases a port would ordinarily be located close to a rail line, which is not the case with Picton Terminals.

“We don’t have a rail line anywhere near Picton Terminals, so the majority of product leaving Picton Terminals will be trucked up County Road 49, nearly 30 kilometres to Highway 401, the closest major artery,” said Stewart.

He noted that earlier this year, the cement plant won approval to burn alternate low-carbon fuels which will be brought in by truck.

“That automatically says more truck traffic, and that licence for Picton Terminals will have even more traffic on County Road 49, so why re-build this road just to have additional heavy traffic, that makes no sense.”

Stewart also spoke to the possibility of a major disaster, something he said has been seen throughout the world with recent fires on cargo and container ships which have cost the lives of firefighters not properly trained to fight fires of this magnitude.

“Where would the highly-skilled personnel and equipment come from to fight a fire at Picton Terminals?”

He noted that only one or two per cent of containers get inspected, and without inspection of the containers, their contents are unknown, so “we don’t know what’s in them and we are therefore unaware of the risks”.

Residents of Picton and Bloomfield (nearly 7,000 of them) rely on the water from Picton Bay, where Stewart noted that more heavy marine traffic, potentially disturbing the contaminated lake bottom, is not the answer.

Ryan Wallach’s deputation took a more legal opinion on the Picton Terminals issue where he spoke to three key issues “on the drama created in the past five years”, including summarizing the current law that governs Picton Terminals and a brief history, and how and why any settlement is premature.

He also explained any attempt by council to try to change the zoning for Picton Terminals through a settlement raises significant legal concerns and potential violations of the Planning Act and County residents’ due process rights.

To establish some background, Wallach explained how nearly three years ago, he made a deputation to council why Picton Terminals’ application to become a cargo container port was inconsistent with the County’s bylaws, official plan, provincial policy statement, and “inconsistent with the will and desires of the vast majority of County residents”.

He noted council unanimously agreed, denying that application. However, Picton Terminals appealed the decision, forcing the County and residents to prepare for an appeal, including hiring lawyers and expert witnesses, only to withdraw its appeal.

He said the current law means Picton Terminals enjoys a legal non-conforming use on its properties to engage in the trans-shipment of bulk products, like iron ore, aggregates, salt, and farming and steel products.

“The Save Picton Bay decision was very clear that the legal non-conforming use was limited to the trans-shipment of dry bulk products, not liquid bulk products, containerized products or any other type of products,” said Wallach.

Wallach further clarified by saying the current law prohibits Picton Terminals from storing and shipping containers on its properties, “yet it has around 200 containers sitting on top of the escarpment stacked nearly 50 feet high in blatant violation of County bylaws”.

“Picton Terminals clearly believes it is above the law,” he added.

He said Picton Terminals entire basis for withdrawing the appeal claimed that, quote, “all ports in Canada are regulated by the federal government”, “that shipping and navigation is a power wholly within the jurisdiction of the federal government”, and “the County has no legal jurisdiction to regulate the port”.

Wallach noted that neither Picton Terminals or its parent company have ever explained these claims, or even made those arguments in a court “where they could not lie about their rights, and where the claims would be scrutinized under the actual law”.

His second point addressed how it is premature for the County to settle with Picton Terminals at this time.

He noted how last October the County filed an application in court against Picton Terminals seeking an injunction constraining Picton Terminals from developing its lands without approval from the County.

Wallach further emphasized that Picton Terminals has not had to file a single document or testify in court why it is not subject to provincial and County laws.

“He has gotten off scot-free by delaying the case, and is now turning to brow-beating the County into a settlement just before Picton Terminals is due back in court and will have to respond to the County’s application and explain its claims,” said Wallach. “It really is time for the County to say, enough is enough.“

Wallach also emphasized and clarified that the only issue before the court currently is whether Picton Terminals is correct in its argument that it is subject to exclusive federal jurisdiction and that it can ignore County and Ontario laws.

“That argument, of course, begs the question of why Picton Terminals has been wasting the County’s and residents’ time and money these past five years, since it arguably never needed permission from the County or the ministry or Quinte Conservation Authority to do whatever it wants on its properties.”

“The answer to that question is that Picton Terminals is wrong about the law and about the facts, which is why in large part it probably doesn’t want to respond to the County‘s application in court,” he said. “A decision to the contrary would mean that every port in Canada suddenly would be free from municipal and provincial laws, and be entitled to become a container terminal.”

Wallace said if Picton Terminals really thought its arguments were strong and essentially slam-dunks in court, it would not have delayed responding, despite entering an appearance in the court case last October.

“It is well past time for the County to force Picton Terminals to respond to the application and show its hand,” Wallach said.

“The County should not settle a case without ever having Picton Terminals respond, and certainly not do so in secret and in violation of the procedural protections provided residents in the Planning Act.”

Wallace said any attempt by council to attempt to change the zoning for Picton Terminals through a settlement raises “significant legal and political concerns and potential violations of the Planning Act, and County residents’ due process rights”.

“It would be ironic and sad for the council to try and settle its case with Picton Terminals out of concern about litigation costs, even when the County has the much stronger arguments, only to end up going to litigation with its own residents for denying them their due process rights,” added Wallach.

Stewart said it would seem “foolhardy” to allow Picton Terminals to continue operating.

“If they are to continue operating, then it is on a very limited scale; the proximity of Picton Terminals to residential properties across the bay makes this a poor location for an enterprise of this sort,” he said.

“The rights of the property owners to the peaceful enjoyment of their homes must be respected.”

Following the regular meeting, council returned to its closed meeting to continue discussion.

Council decided to continue seeking a court settlement to resolve outstanding legal issues related to the operation of Picton Terminals and will also arrange a formal council-to-council meeting with the Mohawks of the Bay of Quinte given their continued interest.

Council continues to seek court ruling in Picton Terminals case