October 24th, 2019 Mr…

October 24th, 2019

Mr. Andrew MacDonald
Natural Resources Conservation
Policy Branch
300 Water Street
Peterborough, ON K9J 8M5

Re: Proposed Amendments to the Aggregate Resources Act, ERO 019-0556

I read with great interest the proposed changes to the Aggregate Resource Act, intended to reduce bureaucratic processes for businesses while maintaining strong protection for the environment and managing impacts to communities.

I acknowledge that as a public policy-maker, the Ministry of Natural Resources and Forestry (MNRF) is charged with the challenging and difficult task of balancing divergent land-use needs and creating a robust and sustainable policy framework that addresses those land-use needs.

I acknowledge that the Proposed Amendments to the Aggregate Resources Act and related regulations are posted for comments on a broader level; that said, due to the current review of the draft 2019 Provincial Policy Statement occurring simultaneously with the Proposed Amendments to the Aggregate Resources Act, it is not certain to which version of the Provincial Policy Statement should be referred. Therefore, this comment makes reference to the 2014 version as it is in effect right now. However, given that any transition provisions for the 2019 version are as yet unknown, I have concerns that these references may be viewed as non-applicable.

I wish to begin with introducing my perspective: at the end of March 2018, I received notice detailing the application plans of Fowler Construction Company Ltd. (Fowler) to dig 15 meters deeper into the existing quarry, and 22 meters closer to Rama Road, and the Floral Park community. Fowler also proposed to practically double its extraction footprint by applying for a licence for a new quarry in the newly acquired adjacent property to the north, thereby extending the life of the original quarry from the approximate 10 years remaining to an additional approximate 76 years. I had 45 days to officially object to this application.

The Fleming Quarry, owned by Fowler, is literally within a stone's throw from the community of Floral Park. The closest homes are approximately 80 metres away. Floral Park is a waterfront community on beautiful Lake Couchiching, which is part of the Trent-Severn Waterway. The proposed quarry expansion is within roughly 120 meters of this established shoreline community cluster.

Floral Park is one of many communities challenging a quarry's proximity to a residential area and main water source. A number of individuals feel that problems with their wells, both in quality and in quantity are a direct result of being negatively affected by the Fleming quarry. Fowler was prompt at addressing one resident’s well that had run dry upon notification by refilling it. Remarkably though, Fowler determined they were not at fault. The reality is that this quarry, among many, are affecting the water tables significantly resulting in huge problems for nearby communities, and surrounding wetlands and biodiversity.

I support and welcome proposals that are aimed at reducing or eliminating redundancies, inefficiencies, and inconsistencies, and that streamline processes. Innovation is key to the modernization of any organization. What might have been considered a well-implemented and efficient process or plan 5 or 10 years ago, is no longer sustainable, practical, or appropriate given the current time, knowledge, technology, science, politics, fiscal accountability, societal views on climate change, and environmental impact. Having said this, I am concerned with the lack of clearly-defined proposed regulations that particularize what the amendments will/might be.

As you can appreciate, your proposed changes are articulated at such a high level that they lack the substance required to make an informed decision to support these changes. In this current climate where the environment is highly politicized and a matter of public policy, strengthening protection of water resources is greatly promoted and favoured. I am pleased that the proposal includes increased public engagement on applications that may impact water resources, with an opportunity to have municipalities heard by the Local Planning Appeal Tribunal. However, the proposal does not include a detailed breakdown of what a more robust application process entails for existing operators wishing to expand to extract aggregate within the water table, nor does it outline how the amendments allow for increased public engagement. Any improvement to an existing process could arguably be considered more robust than the current process but still falls significantly short of a vigorous method to protect water tables. Without a well-laid out and formulated plan that speaks to the mechanisms that are going to be implemented to protect water resources, and what the measurable outcomes will be, the proposal is doomed to fail or certainly fall short on expectations. Public consultation opportunities need to be more transparent than what they are. Posting a proposal on a site does not equate to proper or adequate public consultation. I am suggesting the introduction of citizen advisory committees in the aggregate site management process as a method of, but not limited to, assuring public consultation.

I note that dewatering activities are not addressed in any of the proposals outlined by the MNRF. I understand that quarries are dealt on a multi-jurisdictional level. However, there are huge environmental impacts when it comes to dewatering and groundwater controls, and those should really be encompassed in the MRNF's review of the Aggregate Resources Act and related regulations.

Successful measures to mitigate potential impacts from dewatering and groundwater control are necessary, and must be based on a deep and solid understanding of the site and its environment's hydrogeology. Dewatering for a deep excavation causes notable impacts compared to a shallow excavation. Assessment of potential groundwater impacts should be a key part of the design of the dewatering for large aggregate extraction, which may be dewatered to great depth for many years. If dewatering is carried out on or near a site which has a history of groundwater pollution, it is possible for the dewatering or groundwater activities to cause the existing contamination to move and migrate towards the dewatering system. Only water treatment before it is discharged will safely control contamination. Of critical importance is the presence of any nearby sensitive groundwater receptors such as wetlands and third-party water wells. In essence, the depth and extent of the excavation and the groundwater control methods need to be defined prior to their implementation.

Quarries can have a significant negative impact on water quantity in adjacent areas. This is well-documented in residential areas with wells. In cases where aggregate operations extend below the water table, a number of hydrological impacts may occur. The evaporation of on-site ponds occurs at a faster rate than would occur from a natural land surface. Lowering the water table during aggregate extraction may drain surrounding wetlands that are fed by groundwater discharge. In addition, the removal of vegetation and topsoil at the initial stages of the extraction process can result in the loss of natural stream flow patterns.

I recognize that the management of aggregate resources falls under the MNRF’s mandate, and over the last couple of decades there have been significant evolvement of the policy framework that controls aggregate extraction activities. It must be said, however, that aggregate extraction activities remain largely a self-regulating industry. Ideally, it is always desirable to have the industry regulating itself rather than have strictly imposed legislative requirements. The fact of the matter is that policy failures such as ineffective processes for inspection and enforcement coupled with a lack of incentives for rehabilitation of pits and quarries have resulted in poor rehabilitation rates and unsuccessful rehabilitation.

You have indicated that you are considering some regulatory changes on the reporting of rehabilitation. What does that mean precisely? “Considering” is not suggestive of any affirmative action one way or the other. You refer to enhancing reporting on rehabilitation requirements to include more context and detail. What is in fact being considered? What rehabilitation requirements are being examined? What degree of context and detail are you taking into account? What is the end game or expected outcome? What are the measurables? It is a known fact that there have been many studies in relation to the environmental, social, and economic implications of the mining industry, and very few studies conducted in the area of aggregate extraction. In view of this, it is of interest to know what the MNRF proposes as changes to the Aggregate Resources Act and regulations, principally with respect to the cumulative environmental and topographical impacts and current socio-political spirited discussions/debates.

I have examined sections of the Provincial Policy Statement of 2014, particularly, 2.5.2. Protection of Long-Term Resource supply, and specifically:

2.5.2.2. Extraction shall be undertaken in a manner which minimizes social, economic and environmental impacts.

How is it even possible to engage in any kind of resource extraction and minimize social, economic, and environmental impacts? This is entirely subjective, depending on how one interprets the term, “minimizes.”

2.5.2.4. Mineral aggregate operations shall be protected from development and activities that would preclude or hinder their expansion or continued use or which would be incompatible for reasons of public health, public safety or environmental impact. Existing mineral aggregate operations shall be permitted to continue without the need for official plan amendment, rezoning or development permit under the Planning Act.

While the language used here is interesting in that it indicates that Mineral aggregate operations shall be protected, clearly it is humans and the environment that should be protected from the negative effects of mineral aggregate extraction. In a situation where a quarry is surrounded by wetlands, and within 80 metres of the closest homes, this is simply not possible.

I examined the Proposed Provincial Policy Statement (2014): 2.5.3. Rehabilitation, precisely:

2.5.3.2 states "Comprehensive rehabilitation is encouraged where there is a concentration of mineral aggregate operations."

This statement provides and allows aggregate companies the freedom to choose to implement [or not] a rehabilitation strategy that may [or may not] be effective and successful. There is a financial cost to developing and implementing such a rehabilitation process. This financial cost may be the caveat that results in no rehabilitation, or a rehabilitation that does not address public health, public safety, and environmental impacts. Lax language such as, “recommended”, and, “encouraged”, cannot be used in any revised statute or policy if the MNRF is actually serious about protecting the environment.

A significant percentage of active aggregate sites do not initiate any type of progressive rehabilitation. I would like to see any type of amendment to the Act or respective regulations to legislate a mandatory progressive [and final] rehabilitation of all licensed pits and quarries with significant penal consequences if not adhered to.

The proposed amendments include possible regulatory changes to allow some low-risk activities to occur without a licence if conditions specified in regulation are followed. What are these low-risk activities? Who defines what is a low-risk activity? On what basis is an activity considered low-risk? Is the science there to support or define what a low-risk activity is? How detailed will the regulations be?

I am familiar with various statues and regulations, and I know well enough that most lack clarity and direction, use confusing language, provide for broad interpretation and discretionary authority, and use ambiguous or obscure phraseology such as “good and sufficient”, “where it is safe and lawful to do so”, “where notification has been provided”, and, “reasonable amount of time”, to name a few commonly known ones. I am concerned that these proposed and not yet-defined amendments will not be written in such a way as to be explicit, resulting in various interpretations [or misinterpretation] of its meaning and its application.

I am concerned with the absence of detail about the compliance reporting requirements. When members of the community spoke to the MNRF, they were advised that the MNRF does not have the infrastructure by way of personnel to adequately and regularly inspect quarries. Against this background, streamlining compliance reporting requirements appears to perhaps suggest that there would be a reduction or elimination of physical inspections of aggregates, and that one can expect a self-reporting form of audit. In essence, it suggests a process that appears to be designed to address the lack of MNRF personnel available to conduct inspections rather than to actually streamline a process that has been fraught with bureaucracy. There needs to be an increase in the number of aggregate field inspectors to enable more frequent and thorough monitoring of the pits and quarries in the province.

I am troubled with the absence of detailed information that the proposed amendments contain, and that is required for collaboration and collective decision-making. There is a lack of substance to the proposal that is concerning.

It is a well-known fact that the current provincial government has significantly reduced funding to a number of initiatives, and drastically cut budgets in all sectors, thereby resulting in government agencies and ministries to become exceptionally creative in examining ways to deliver their mandate with limited resources.

The MNRF has not been exempted from this severe reduction in funding to manage its operations. Given the MNRF’s mandate to manage Ontario’s aggregate resources, reviewing the Aggregate Resources Act and selecting language such as “providing more flexibility to permit self-filing of routine site plan amendments”, “streamline compliance”, and, “allowing low-risk activities”, raises concerns of the timeliness of this legislative review, and the real purpose behind the proposed amendments.

Aggregate extraction has long been identified as one of the most contentious land-uses, creating concerns about issues such as flyrock, dust, noise, increased truck traffic, lowered property values, alteration to the biodiversity and ecological wetlands, and the lowering of ground water table from pumping. I am proposing that a set maximum of disturbed areas is determined at operating aggregate sites and prior to any future approvals, as well as the introduction of citizen advisory committees in the aggregate site management process, and to set well-established timeliness of rehabilitation plans to the sites in question.

I am concerned about the absence of any kind of regulatory standard when it comes to dust testing. Granite quarries are exempted from having to test dust, and yet crystalline silica is a byproduct of crushed granite, and is classified in the same category of human carcinogens such as asbestos. Would the WSIB not be concerned with this gross oversight, resulting in what could potentially result in a substantial number of claims?

Quarries engaging in multiple processing operations such as blasting, cutting, chipping, drilling, and grinding can result in exposure to silica dust that is hazardous for construction workers and others to breathe, including communities in close proximity to quarries. While surely it should be required, or at the very least, recommended that quarry workers are provided with personal safety equipment to mitigate the inhalation of the very fine respirable silicate dust, a Fowler executive stated that they do not require workers to wear protective masks in the Fleming Quarry. Given this attitude, how can I expect that Fowler would be concerned for the safety of our community?

I am extremely worried that nearby communities are vulnerable to the inhalation of these fine particles that can travel a great distance. It only takes a very small amount of this dust to create health hazards such as respiratory and immune disorders, and cancer. The only way to prevent the dust from becoming airborne is by using engineering controls to reduce exposures, which still would not guarantee absolute prevention. If quarries are not required to test the dust for silica, there is no way to confirm if the exposures are high even with control measures such as water. Given what we now know about the result of exposure to asbestos, why is one of the proposed amendments to the Act not advocating to remove this exemption?

To this end, I would like to re-state that I want to see clearly expressed, explained, and descriptive language regarding these poorly-defined amendments before any recommendations are advanced for legislative review.

I thank you for your time in reviewing my letter, and I would welcome an opportunity to discuss the subject more thoroughly.