May 15, 2020 Resource…

May 15, 2020

Resource Development Coordinator
MNRF - Natural Resources Conservation Policy Branch Resource Development Section
300 Water Street 2nd Floor, South tower
Peterborough, ON K9J 3C7
Via email:
Aggregates@Ontario.ca

Re: Proposal to amend O.Reg. 244/97 and the Aggregate Resources of Ontario Provincial Standards under the Aggregate Resources Act ERO# 019-1303

Protecting Escarpment Rural Land (“PERL”) is a non-profit community-based volunteer organization founded and incorporated in 2005 dedicated to the protection and enhancement of the Niagara Escarpment in Burlington and Halton Region, Ontario. PERL has thousands of supporters in its mission to protect and preserve the remaining portions of the Niagara Escarpment, a vital ecological resource, and a UNESCO World Biosphere Reserve.

We thank you in advance for accepting our comments below. We expect that important and necessary changes will be made to the Aggregate Resources Act (“ARA”) to re-balance competing provincial "resources of interest", with a focus on long term ecological, social and economic sustainability. It is time for the Province to develop an aggregate strategy based on appropriate uses of aggregates, environmental protection, appropriate compensation for the consumption of our best resources, conserving as much of this non-renewable resources as possible, reuse and recycling, the use of alternative materials and technologies.

The Ontario Greenbelt, the Niagara Escarpment and the Oak Ridges Moraine are special places, which future generations will need for their survival and quality of life.
The economic benefits provided by our natural and agricultural areas generate billions of dollars in economic benefits for Ontarian’s. It is estimated that the benefits provided by Ontario's Greenbelt areas is valued at at least $2.6 billion annually.
These areas and systems must be protected from development and exploitation. Our prime agricultural lands can never be replaced. With non-sustainable population growth projections around the globe, our good agricultural lands will be needed to feed the people.
Clean, safe and abundant waters are essential to sustain life.
Our forests, woodlands, wetlands and marshes are needed to clean our air and waters, and to reduce the impacts of climate change, and erosion. We support the requirement that Municipalities be required to set tree cover targets, and to enact tree cutting restriction bylaws.‎
To support biodiversity and ensure long term ecological sustainability, we need to improve connectivity between natural heritage systems and features, agricultural, and water resources. To achieve this, we need more comprehensive scientific field work, studies and inventories.

New aggregate pits and quarries should no longer be permitted on the Niagara Escarpment. There are currently over 40 licensed quarries within the NEP. Too much permanent damage has already been done by dozens of quarries to these UNESCO World Biosphere Reserves.

Quarries requiring post production, after use, perpetual water management (pumping) should not be allowed, or licensed.

Unfortunately, in recent years, the aggregate industry is choosing to expand existing quarries, thus delaying final rehabilitation of depleted quarries for DECADES. There needs to be a defined extraction time period for new quarry licenses within NEP, GREENBELT and Oakridge’s Moraine Plan areas, including ongoing progressive rehabilitation, followed by immediate final rehabilitation. The intentional slowing of quarry extraction makes a mockery of “interim use” policies, and the scarce aggregate supply storyline, promoted by the industry. To many licensed quarries sit idle, while new quarries are proposed.
New quarry licenses must have their own aggregate processing facilities, and not transfer aggregate to expiring quarries for processing, thus further delaying final rehabilitation. Depleted quarries must undergo final rehabilitation, and the surrender of their licenses and permits.

There is a real and present danger to our precious groundwaters from the importation and placement of construction waste soils / fill into below-the-water-table quarries, especially contaminated soils from former industrial brown-field sites.
Imported, potentially contaminated fill for rehabilitation and after-use inside pits and quarries greatly increases the risk of groundwater contamination, and threaten the health of living things, including people. This is because the Ontario O. Reg. 406/19: ON-SITE AND EXCESS SOIL MANAGEMENT regulations DO NOT apply to mineral aggregate operations. This is unacceptable!

Any imported fill into below-the-water-table quarries need to demonstrate that they do not contravene the more restrictive Ontario EPA Regulation 406/19, Table 2

Compliance monitoring by MNRF for aggregate pits and MECP for excess soil has not been adequate. With the budget cuts that have been proposed for the Ministries, compliance monitoring and enforcement is likely to be even less.
A high degree of oversight is necessary to protect groundwater when excess construction soil is imported to a rehabilitate a pit or quarry.
Excess construction soil must not be used where there is an easy path to groundwater, as is the case for fractured limestone and gravel quarries.

 PERL recommends a prohibition on the use of all imported fill into pits and quarries, and absolutely for below-the-water-table quarries, including the older quarries that no longer have fill available. These older quarries can use quarry shale, rock and clay from the bottom of their own quarries to build sidewall slopes.

 The current practice of dumping excess construction waste fill onto rural lands must be regulated and enforced. There needs to be a prohibition against dumping construction fill onto the Niagara Escarpment, the Greenbelt and the Oak Ridges Moraine.

 And there needs to be swift and severe enforcement and prosecutions for dumping contaminated construction waste fills and toxic chemicals anywhere outside Provincially regulated hazardous landfills. It is the law. It must be enforced.

For the Province to establish protection Plans, policies, regulations and guidelines is not enough. These legislated requirements must be monitored and enforced; and performance metrics set to track improvements against objectives.

Municipalities are responsible for ensuring clean drinking water for their residents. To take away the ability of municipalities to manage where and how aggregate extraction occurs within the groundwater table would impede their ability to manage and protect groundwater supplies. Municipalities need the ability to determine whether extraction occurs above or below the groundwater table and their tool for doing so is zoning.

Multi-year ground water studies and water budgets be mandatory for new site and expansion/extension applications, and that a full natural environment report should also be mandatory for site plan amendments. Safeguarding our water supply must take precedence over aggregate extraction, and a comprehensive and thorough evaluation of the impact of extraction operations on the water table must be carried out before any application for new or increased extraction activity is considered, and where such activity is deemed to threaten water supply and/or quality, the application must be denied. We also unequivocally agree with Environmental Defence Canada, along with a number of municipalities that digging below the water table must not be allowed, lest it taints local water supplies. We are very concerned that municipalities are being forced to ask for legal protection should local by-laws against such excavation be overridden.

A pit or quarry has unavoidable negative impacts on the local environment and its inhabitants. There aren’t any “no impact” quarries.
Negative effects of pits and quarries radiate throughout adjacent watersheds and ecosystems. Headwater areas are particularly valuable and vulnerable, radiating negative effects downstream. Headwater areas are unsuited to below water table extraction operations. In headwater settings negative impacts to water resources commonly occur far from the extraction site.

Quarries leave the landscape permanently altered, more and more often creating unnatural man-made landscapes, and introducing non-native species.
Furthermore, some aggregate operations cause noise, fine particulate dust, blasting problems affecting adjacent neighbours and their properties. The negative environmental and social effects of pits and quarries extend far and wide.

 PERL recommends that local governments / agencies have a greater role in the management and enforcement of pit and quarry operations, in co-operation with the MNRF and the Ministry of the Environment (“MECP”). This would help address negative impacts and issues, and supplement MNRF and MECP resources.

The Province needs to phase out the extraction of aggregates from the Niagara Escarpment and the Greenbelt and help develop the infrastructures and capabilities for accessing aggregates from less environmentally and socially damaging sources. The aggregate industry must adopt world-class best practices for their operations, practices which will protect the health and safety of its workers and its neighbours, and that of the environment. Not for one second do we believe that protecting the Niagara Escarpment and supplying the Ontario market with aggregates cannot be achieved in tandem.

It is recognized that aggregate extracted from the Niagara Escarpment is of the highest quality and is needed for the most “critical” applications. Yet, we see this valuable resource misused in non-critical applications, for example foundation back-fill, drainage, roadway base fill, parking lots, sidewalks, etc. Lower grade and alternative aggregate materials would be acceptable. They are in other jurisdictions.
This high-grade dolostone material is used in low end applications because aggregates are priced too cheaply. Too often, society makes its purchasing decisions on price not value, and seldom on ecological considerations. That needs to change. The supply chain problems which have arisen in the COVID19 pandemic has revealed the fallacy and dangers of low cost supply.

The fee and royalty structure should provide an incentive to encourage operators to manage their licences in accordance with the general characterization that aggregate extraction is an interim land use. There are many examples of sites going “dormant” because of an operator choice in response to perceived market conditions. The fee structure used by the province should provide incentive for operators to continue extraction and move forward with progressive and final rehabilitation, expeditiously. Dormant pits and quarries should carry an additional cost, say penalty.
Aggregate extraction should no longer be considered an “interim land use” given the numerous extraction sites across the province that have been in operation for many decades, and yet apply for ever more expansions / extensions projected to last decades longer. That is not interim.

 PERL recommends that future aggregates extracted from the Niagara Escarpment, Greenbelt and ORM be subject to a substantial per tonne 'ecological surcharge', and let the marketplace sort out its procurement and the supply chain options.
By placing a greater value on our best highest quality resources, we drive conservation objectives and practices forward. Yes aggregate costs would increase on the highest quality limestone, however when the environmental and social costs are factored, the long term “all-in” long term cost to governments and society may actually be lower.

 PERL recommends the establishment of third party certification such as the International Organization for Standardization (ISO) 9001 and 14001. These operational standards are common across many industries, and around the world, especially those companies that are committed to world-class operations, and social and environmental excellence.
This would raise the standards of operational performance to world-class levels, and provide credibility; while complementing the MNR staff resources.
Operational performance can also be enhanced by eliminating “grandfathering” for older operators, whose operations are subject to less stringent legislation and license / permit terms and conditions. Furthermore, grandfathering is likely a key reason for quarry expansions / extensions because the processing continues in grandfathered sites, thus escaping many current standards and regulations. The time has long come to level out the playing field amongst competing aggregate operations. A quarry is a quarry. They all need to comply with the same rules, regulations, and standards.

 PERL recommends that all aggregate licenses and site plan terms & conditions be updated every five (5) years, to reflect the latest PPS policies, and Health, Safety and Environmental regulations and standards. World-class means excellence of operations. World-class means socially and ecologically responsible operations.

 PERL recommends that the MNRF impose temporary stop-work orders for serious non-compliance, and where necessary terminate the license. To provide a mechanism for compliance, a minimum standard for regular inspections must be introduced into legislation, along with complaint resolution guidelines.

 PERL recommends that the Province develop an integrated strategy for aggregates, extending into aggregate use, which includes mandatory recycling, and incentives for reuse and recycling, and for the development and use of alternative materials and technologies. For example, why are northern Ontario hard rock mine tailings not used in southern Ontario for some aggregate replacement, e.g. road base construction, which does not require virgin limestone.
What is being done with the limestone and aggregates from subway and tunnel construction? Does it become excess construction fill to be dumped on the countryside? The Province needs to manage limestone, shale, hard rock excavation materials as reusable aggregate materials “resource”. Waste is a state of mind.

The 'close to market' arguments discount alternative modes of transportation, like rail or barge, which are cheaper and less impactful on emissions. The vast majority of the world's mineral resources are transported by rail or barge or cargo ships. These alternative transportation modes would make billions of tonnes of Ontario hard rock mine tailings (now dumped as waste mountains) available as replacements for much of the limestone aggregate...e.g. road beds do not need limestone, yet needlessly consume an enormous quantity of “high quality” virgin limestone. Why?
Limestone aggregates and cement need to be shipped to northern Ontario because they have no limestone. On return trip, why can’t northern Ontario hard rock tailings be shipped to southern Ontario?

The desire to shorten and speed up the new quarry application process sets aside the importance of a thorough and comprehensive assessment of the potential negative impacts on adjacent neighbours, the local ecology, the downstream ecology, the long term climate change effects, etc. The savings in shortening processes may set up very high long term consequential costs.

 PERL recommends that the ARA process be integrated with the Municipal, Regional, Niagara Escarpment Commission (“NEC”), MNRF, MECP and Conservation Authority via a Joint Agency Review Process (JART). Only after government staff and technical experts have assessed the application for a new or expanded / extended pit or quarry, and are satisfied that the information is comprehensive and peer reviewed, can the application be deemed “complete” to proceed through the ARA process. It is important, however, that the term “complete” not be mistaken for “approved”.

Progressive rehabilitation of pits and quarries must at least keep pace with extraction. The Ontario Aggregate Resources Corporation (“TOARC”) is not rehabilitating abandoned pits and quarries at an acceptable rate. Assuming that TOARC rehabilitates 5 sites per year, with thousands of abandoned sites, it will be centuries before the past is made right, assuming no new sites are abandoned.
In the case of the Nelson/Lafarge Aggregate Mount Nemo quarry, final rehabilitation has been delayed for decades – and could be delayed for decades more because of their proposed adjoining expansion!
The social contract in terms of Site Plan and end of use commitments with the adjacent community have been breached. This must be corrected.

 PERL recommends that TOARC oversight be turned over to the MNRF, and that higher TOARC fees be charged for aggregates extracted, which would then be used to rehabilitate a greater number of abandoned sites per year.

 PERL recommends that current active pits and quarries be required to progressively rehabilitate their sites such that a minimum of 50% of the disturbed site has been rehabilitated.

 PERL recommends that complete and final rehabilitation occur as early as possible, followed by the termination of the licence and transfer of the property to the local authorities for conversion into appropriate land uses.

Most new aggregate quarries are below-the-water-table, which forces the operator to pump and discharge billions of litres of groundwater to surface waters. Often being the largest water user in the area. These are important drinking water and natural heritage system sources of water. With a world continually losing more of its good quality water, we should not waste this life-giving resource for the sake of gravel.

Land use planning is a key responsibility of Ontario municipalities. Municipalities are responsible for ensuring clean drinking water for their residents. To take away the ability of municipalities to manage where and how aggregate extraction occurs within the groundwater table would impede their ability to manage and protect groundwater supplies. Municipalities need the ability to determine whether extraction occurs above or below the groundwater table and their tool for doing so is zoning.

 PERL recommends that new quarries be located away from good quality groundwater sources that are used by nearby populations, and away from key natural heritage system areas.

More and more of our prime agricultural lands are being consumed for development, including aggregate pits and quarries. Future population growth in the world will require ever greater food production. The loss of arable agricultural land is putting future generations at risk. The amount of prime agricultural land and soils is small, and it is being reduced by development, improper land use practices and erosion.
With climate change threatening food production everywhere, ensuring a stable and adequate source of local food will be essential to Ontario’s survival, economic and otherwise.

 PERL recommends that prime agricultural lands not be further sacrificed to development, and absolutely not for gravel.

Nature can not be transplanted from one location to another. The requirement to progressively, then finally rehabilitate the quarry pits is not replacing the ecological value destroyed by extraction. Aggregate extraction generates a net loss for the broader natural heritage systems, even after final rehabilitation.

Extinct, endangered and threatened species are a result of human development which remove natural systems. The spirit and intent of the Ontario Species at Risk Act and its regulations must be reconstituted and upheld. Sacrificing threatened and endangered species for the sake of development is no longer acceptable, or ‘good planning’ for future ecological and economic sustainability, including that of humans. The little that remains of Ontario’s natural heritage and food production lands must be preserved and protected for future generations. Today’s needs must not override the needs of those to come.

We are alarmed by continued lobbying by the aggregate sector to roll back environmental protections. With the recent weakening of the Endangered Species Act, it is paramount that the requirements of rules safeguarding the Natural Heritage System be maintained and be enforced through the Aggregate Resources Act. We urge the Province of Ontario to stand firm against any attempt to further compromise legislation and regulations that safeguards our natural environment, which is our human ecosystem.

The close-to-market arguments are always made for mineral aggregates, yet Ontario does not have close-to-market policies for food supply. Why not? Since ‘prime’ agricultural lands are a key resource in diminished supply, Ontario should protect close-to-market prime agricultural lands from all non-agricultural development. As the world’s populations increase, and as the threats to global food supplies increase, our food growing capacity must increase and be capable of filling food supply shortages.

 PERL recommends that all prime agricultural lands be prohibited from development, including from mineral aggregate extraction, and that policies to encourage agriculture on these lands be made a high priority.

As more mineral aggregate companies choose to expand or extend existing quarries, there needs to be more comprehensive ecological assessments of cumulative impacts for surface and ground waters, dust, air pollution, natural heritage systems, extended stresses on threatened & endangered species, and on agricultural productivity and food safety.

The reliance on Adaptive Management Plans (“AMP”) by the aggregate industry when making applications for new or expanded pits and quarries is problematic. It foists the potential negative effects into an undefined future, often relying on untested or unproven mitigation methods, e.g. groundwater recharge systems. The onus to demonstrate no negative impacts is on the aggregate developer, prior to being granted a licence. The application assessment and review process must provide assurances against a worst case scenario with negative impacts on people and the environment. If that cannot be done, then the application must not proceed to approval.

 PERL recommends that the use of an AMP be limited to only those potential negative impacts that can be mitigate to an acceptable state, using proven technology. In the case of NEC applications, this means to the NEC’s satisfaction. Unacceptable negative impacts must be forbidden, thus the application rejected.

The operation of asphalt plants inside a below-the-water-table must be prohibited. The risk of future contamination of drinking water sources is unacceptable.

 PERL recommends that all asphalt plants within below-the-water-table pits and quarries be terminated. This practice is unnecessary given alternative industrial sites are available, and the number of existing asphalt plants in current use outside of quarries.

Any company’s “social license”, its right to operate, must be earned through demonstrated and continuous operational improvements, and reductions in health & safety, environmental and societal negative impacts. In this day and age, society needs to be informed on and involved in companies’ operations, especially on issues that impact living things.
The Cornerstone Standards Council’s Responsible Aggregates Standard was an attempt to move the aggregate industry into the new age of social and ecological responsibility. Unfortunately, the aggregate industry would not voluntarily make the necessary basic changes. This therefore results in a call for stronger regulations. If the aggregate industry won’t improve their operations, then society must force them improve, through regulations.

Enhanced reporting and record-keeping requirements for rehabilitation, recycling, imported fill quality and quantity, groundwater quality and quantity monitoring, fine dust < 2.5 micron monitoring, emissions, blasting, etc. These issues are of great concern to many of our communities, and should be shared with the impacted communities and their Community Advisory Groups.

The communities most directly impacted by new or increased mineral extraction must be afforded a greater depth and quality of engagement in the new license or change of site plans & conditions, and allowed more time to understand the extent and implication of the proposed changes.
A new increased extraction permission, often operating for decades, can not be rushed through. Full comprehensive ecological / environmental and social assessments, supported by state-of-the-art technical studies by qualified persons, must be the standard, not the calendar.
For a mineral extraction operation that will impact communities and the biosphere for generations, and located in ecologically sensitive areas, the Precautionary Principle must guide its depth and quality of assessments, and extent of public involvement.

The review process should not compromise thoroughness for the sake of efficiency and speed, and we therefore recommend that the Ministry not predetermine which agencies should participate but continue to circulate aggregate applications broadly. There must be opportunity for all stakeholders to participate using currently accepted modes of communication (both electronic and traditional). We further agree with GWO that comments received on aggregate applications posted on the Environmental Registry also be considered as part of the objection process under the Aggregate Resources Act, and that revisions to this aspect of the application process should provide for both streams of engagement.
“The public should be allowed to continue to raise concerns over the project and those concerns should become part of the public hearing record for any adjudication of the matter at an LPAT hearing.”
As has been the case, the aggregate proponent was unfairly allowed to introduce new data in the midst of a Joint Board Hearing. If acceptable for the proponent, then it should be allowed for the opponents.
We also agree with GWO that a robust notification process should be required for site plan amendments to existing aggregate sites.

PERL believes that the implementation of its above recommendations, and that of other environmental organizations will strengthen the ARA. Thank you for accepting our comments.

Sincerely,
Roger Goulet
PERL Executive Director

https://www.facebook.com/Perlburlington/

Proposed amendments to Ontario Regulation 244/97 and the Aggregate Resources of Ontario Provincial Standards under the Aggregate Resources Act
ERO number 019-1303
Notice type Regulation
Act Aggregate Resources Act, R.S.O. 1990
Posted by Ministry of Natural Resources and Forestry
Notice stage Proposal
Proposal postedFebruary 12, 2020
Comment period February 12, 2020 - May 15, 2020 (93 days) Open
Last updatedFebruary 12, 2020