Thank you for consulting on…

Thank you for consulting on the Ministry's latest regulatory proposals under the Aggregate Resources Act. Given the current COVID-19 emergency, we appreciate that the Ministry has extended the commenting deadline for this proposal until May 15, 2020.

In response to your request for feedback, please accept the attached two reports as the Region of Waterloo's submission on the proposed regulatory changes. The first document, PDL-CPL-20-06, was adopted by Waterloo Regional Council on March 24, 2020. The second document, PDL-CPL-20-14, is an Addendum to the first report and will be considered by Regional Council on May 26, 2020. We ask that you treat the Addendum document as a placeholder comment until Regional Council formally considers it on May 26. Below is a summary of the Region's submission.

Source Water Protection

We are generally supportive of the proposed changes. However, it is our view that some of the technical requirements being proposed represent minimum standards and may not be adequate in all situations. For example, the proposed rules for establishing the water table would require applicants to monitor groundwater levels for a one-year period. By contrast, the Region's hydrogeological study guidelines currently require a minimum of two years of monitoring data where there is a potential risk to drinking water sources. This standard provides a better picture of water level trends, which will become increasingly variable in the future because of the impacts of climate change (e.g., higher annual precipitation rates will result in increasing groundwater levels and higher water table). Accordingly, we recommend that the Ministry require applicants to submit a minimum of two years of groundwater monitoring data to establish the water table, where there is a potential risk to drinking water sources (e.g., extraction below the water table, aggregate washing, etc.).

The proposed regulations would also require new and exiting aggregate operations to have a dust mitigation strategy. Other than water, the only Provincially approved dust suppressants are both chloride-based chemicals. Applying these chemicals on an open sand and gravel pit would result in the chloride recharging water supply aquifers, thereby increasing chloride levels in public and private wells. If a pit is being proposed in a source water protection area, the Region would typically request that chloride-based dust suppressants not be used. However, given that dust suppression are proposed to be required in all pits, we recommend that the Province now view aggregate extraction activities as a threat under the Clean Water Act, which would be subject to the same risk mitigation measures required for winter road and parking lot maintenance.

Despite our general support for your source water protection-related proposals, we believe that they do not go far enough and recommended that the Province establish an outright prohibition on aggregate extraction activities within a Category A or B Wellhead Protection Area. There are three main reasons for this recommendation.

First, it is our position that extracting aggregates close to, or below the water table within Category A or B Wellhead Protection Areas has the potential to impact the quantity and quality of water in a Regional supply well. Such impacts could occur through the creation of preferential pathways to the aquifers, or through the removal or thinning of the protective soil layers that “filter” the water before it reaches the well. These physical changes can increase the risk of groundwater contamination through the extraction process (e.g., fuel spills), or through contamination related to inappropriate land uses after the site has been rehabilitated is (e.g., road salt, agricultural pesticides or nutrients). These changes could also increase the risk of bacterial contamination from birds, livestock and other animals that could potentially impact public health.

Second, the increased risk of groundwater contamination poses a long-term threat to the Region’s supply wells, and could potentially result in the need for costly upgrades to water treatment processes or even the closure of a well. The loss of a Regional supply well could significantly impede Region’s ability to meet both its existing municipal water supply obligations, and the population growth targets mandated by the Province’s Growth Plan for the Greater Golden Horseshoe.

Third, although the aggregate industry maintains that aggregate extraction by itself is not a threat to groundwater, and that there is no basis to prohibit extraction in sensitive source water areas, it is difficult to predict every possible impact and to develop fail-safe mitigation measures to protect groundwater. Most mitigation measures depend on careful construction and on-going maintenance and monitoring by the aggregate operator. However, because of the limitations related to the self-assessment process of aggregate operations, such monitoring measures may be less than effective over the long-term.

For these reasons, we reiterate our longstanding recommendation that the Province adopt a more precautionary approach to source water protection and prohibit outright aggregate extraction within Category A or B Wellhead Protection Areas. If adopted by the Province, this prohibition would only affect a very small percentage of the region’s total aggregate resource area.

Public Consultation and Notification

In general, we support the proposed changes and feel they are an improvement over the current notification requirements. Despite these improvements, however, we reiterate our previous recommendation to the Province that municipalities be given the ability to appeal the Ministry's decision (to expand an existing aggregate operation into the water table) to the LPAT, if the municipality’s concerns regarding source water protection are not fully addressed through the application process. In the absence of any appeal rights, any outstanding concerns could only be referred to the Tribunal for a hearing at the discretion of the Ministry.

Compliance Assessment Reporting

We generally support the proposed changes and believe they should help operators stay familiar with what activities are permitted on their site. It should also help them ensure that any potential impacts are avoided or appropriately mitigated. Despite our broad support, however, we note that the effectiveness of the self-assessment process will ultimately depend on the accuracy of the information submitted by the operators. Consequently, we recommend that the Ministry review its current site inspection and enforcement rates to ensure that the self-reported data is accurate.

Aggregate Site Rehabilitation

We generally support the proposed changes. The requirement for operators to provide additional information on their rehabilitation activities will provide more context and detail on where, when and how rehabilitation is or has been undertaken. The changes will also provide more transparency on how sites are advancing towards full rehabilitation, and encourage operators to better demonstrate their ongoing efforts. In addition, we acknowledge and appreciate the Ministry's ongoing efforts to develop additional guidance for operators and municipalities, such as best management practices for rehabilitation. We support this initiative and recommend that the Province collaborate with municipalities and other stakeholders in the development of rehabilitation best management practices.

Minor Site Plan Amendments to Excavation Setbacks

While we understand that aggregate producers must have some flexibility to adjust their excavation setbacks, municipalities and the public currently have no input into the process and there are no limitations on the number of times setbacks can be reduced. Left unchecked, this incremental process could adversely affect the surrounding community over time (e.g., noise, dust, visual impacts and groundwater).

To address this issue, we recommend that the Province limit the number of times an excavation setback reduction can be approved through a minor site plan amendment process to one. Any subsequent reductions to the setback should be treated as a major site plan amendment, and be circulated to the affected area municipality, the public and other agencies for review and comment.

Introduction of “Sunset Clauses”

Although there have been many examples of successful and timely site rehabilitation in Waterloo Region, there are still concerns about rehabilitation rates, partially extracted and/or dormant pits. Rehabilitation rates here and elsewhere in Ontario are perceived to be slow and often lag behind the rate at which new areas are opened for extraction. Some pits appear to operate continually with no closing date in sight. Other sites appear to be partially exhausted but remain dormant for many years. We have also encountered some licensed sites that have sat idle for many years before any extraction has actually occurred.

To help address this challenge, we recommend that the Province initiate a broader discussion with municipalities, the aggregate industry and other key stakeholders on the introduction of “sunset clauses”, required site plan amendments, and other potential measures for licensed sites that sit idle for many years. The overall goal should be to encourage the completion of extraction and rehabilitation in timely manner, and to have all licenses updated as necessary to reflect current standards.

Thank you again for consulting on the Ministry's latest regulatory proposals. Please contact us if you have any questions, or would like to discuss our comments further.