2022-02-24 Cathy Curlew…

2022-02-24
Cathy Curlew
MNDMNRF - RPDPB - Resources Development Section
300 Water Street
2nd Floor, South Tower
Peterborough, ON
K9J 3C7
Canada
Proposed regulatory changes for the beneficial reuse of excess soil at pits ERO number: 019 4801, Notice type: Regulation, Act: Aggregate Resources Act, R.S.O. 1990

Regulatory status of ARA Extraction Licences under the Planning Act:

The Provincial Policy Statements {P.P.S.} have regulatory weight by Order-in-Council under Section 3 of the Planning Act:
“(5) A decision of the council of a municipality, a local board, a planning board, a minister of the Crown and a ministry, board, commission or agency of the government, including the Municipal Board, in respect of the exercise of any authority that affects a planning matter,
(a) shall be consistent with the policy statements issued under subsection
(1) that are in effect on the date of the decision; and
(b) shall conform with the provincial plans that are in effect on that date,
or shall not conflict with them, as the case may be. 2006, c. 23, s. 5.”

An important matter of status of ARA Licensed aggregate strip mines is they must first have a full municipal land use approval under the Planning Act. The Township of Woolwich O.P. Chapter 1, Aggregates Resources Policy 11.2 contains a clarification to the reader;
“Although it is recognized that the licensing and control of pit and quarry operations are a Provincial responsibility, the present legislation provides that no license shall be issued in respect of a pit or quarry where the location is in contravention of an Official Plan or Zoning By-law of the municipality in which it is located. This legislation provides opportunity for the municipality to have input into the licensing and control of future pits and quarries.”
The Woolwich O.P. observation on the legislative role of municipalities in governing aggregate strip mines is based on Planning Act Section 34 (1), “Zoning by-laws may be passed by the councils of local municipalities:
Restricting use of land
1. For prohibiting the use of land, for or except for such purposes as may be set out in the by-law within the municipality or within any defined area or areas or abutting on any defined highway or part of a highway.
(2) The making, establishment or operation of a pit or quarry shall be deemed to be a use of land for the purposes of paragraph 1 of subsection (1). R.S.O. 1990, c. P.13, s. 34 (2).”
Planning Act Section 34 (1) (2) is an unusual, explicit, declaration that aggregate strip mines are a land use. Out of all possible land uses governed by the Planning Act in Ontario only aggregates earns an explicit call out. The MNRF and the aggregate industry have woven a myth that once a strip mine is licenced under the ARA the municipality is excluded, for the life of the mine, from any meaningful municipal input into site plan amendments and operational adverse effects on surrounding land uses.
P.P.S. Section 3 (5) is a clear requirement that any ARA Licence site plan amendment is subject to all relevant policies legislation and P.P.S. policies in force at the time of an amendment. There are minor site plan amendments such as the location of internal haul routes, piles of aggregate, scale houses, maintenance sheds, are of a trivial nature. Mining outside of specified site plan limits, mining into zoned setbacks from adjacent roads and properties mining below the water table under an above water table licence are all substantial and involve the P.P.S., municipal Official Plan and Zoning permissions.
“Applicants on existing approved sites will:
Complete consultation as directed by the ministry if requesting to make a significant change such as, to the rehabilitation plan and/or change the amount of fill (i.e. quantity) approved for importation on the site plan.” Discussion in the paragraph directly above clarifies that consultation must also occur with the host municipality during an Official Plan Amendment and Re-zoning associated with a “significant changes” to a site plan.
Old Strip Mine Licences:
The majority of gravel strip mines in the Town of Caledon were grandfathered when the Pits and Quarry Act was implemented in 1971, long before the first version of the full P.P.S. in 1996, with minimum conditions and rehabilitation plans reduced to facilitate the maximum extraction for a property resulting in square, water filled holes with no final land use as a goal. There are no permissive conditions for placing excess construction fill into grandfathered ARA Licence strip mines in The Town of Caledon and probably across Ontario. Placing vast amounts of excess construction fill into old, grandfathered strip mines constitutes a major site plan amendment, conformity to the P.S.S. and Official Plan and Zoning Amendments. To be clear, the location of aggregate strip mines are where natural forces placed the deposits and the purpose of the mines is to produce virgin, graded aggregate products, not as a place to dump excess construction fill.
Ground and Surface Waters:

The location and nature of sands, gravel and bedrock have high percolation rates for precipitation and flows of ground water moving through the deposits. Any pollutant spilled in an aggregate strip mine or contained in excess construction fill will very quickly reduce the quality of ground waters in the area. Large amounts of excess construction fill placed in a below water table strip mine will act as a hydraulic plug backing up ground water up gradient of the strip mine and diverting flows into other directions. Aside from reducing ground water quality, the function of a hydraulic plug will not have been part of relevant ground and surface water studies provided as part of the original Official Plan, Zoning and ARA Licence approvals. Major excess construction fill operations in all strip mines shall require new municipal Official Plan and Zoning approval, supported by relevant studies, will be necessary to support such a major site plan amendment.
Ground and surface waters are key components in rural Ontario communities and landscapes. Compensating for loss of useable ground water can cost millions of dollars for municipalities and render affected private property valueless. Placement of excess construction fill in above water table strip mines must use only the highest quality materials in order to minimize short and long term harm to the quality and quantity of waters.
Suitable Soil Quality:
Proposed Ontario Regulation 244/97 changes 2 (i) “suitable soil quality is received for reuse based on conditions at the site and the approved future land use in the rehabilitation plan.” This wording seems to be equivocal regarding the cleanliness of excess construction fill to be imported. What are the tests for “conditions at the site”? And, what are the soil tests for whatever “the approved future land use”? The vagueness leaves the determination of soil quality open to negotiation. The quality of rural ground and surface water must not be a matter for some strip mine operator to negotiate based on their profit motives.

Self-filed site plan amendments:
Proposed Ontario Regulation 244/97 changes 3. “For existing licence holders authorized to import fill to facilitate rehabilitation, add rules in regulation, that when followed, would enable approval holders to make specified changes to their site plan without the need for ministry review (i.e., self-filed amendment).” This is an amazing suggestion for the delegation of powers to independent businesses given the legislative requirements for all land use decisions to conform to the P.P.S. and the Planning Act Section 34 (1) (2) cited above explicitly naming aggregate strip mines as a land use.
“Applicants proposing a future aggregate site:
• Will demonstrate that the quantity of excess soil estimated to be received is consistent with that quantity necessary to achieve the site conditions specified in the rehabilitation plan to support the proposed future use. This is consistent with the Excess Soil Regulation requirements for other reuse sites, i.e., that the quantity of excess soil deposited or to be deposited at the reuse site must not exceed the quantity necessary for the beneficial purpose and the primary use of the site must not be the deposit of excess soil.”
This is a necessary provision as there are vast amounts of excess soil generated in big urban GTA [estimated to be 1 to 2 times the volume of the Sky Dome per year] and the incentive to turn aggregate strip mines into major excess soil dump sites. The provision also implies precise elevation contours to be set in the site plan rehabilitation sheet. The provision assumes a final land use be determined and maintained over the life of a mine. Strip mine complexes in Caledon have lasted 70 years.

“Anticipated outcomes
2. Increased flexibility for aggregate site approval holders to plan for and undertake rehabilitation in a cost-effective manner and creates opportunities for diverse post-extraction landforms and land uses.”
Strip mine operators now have flexibility for rehabilitation in cost-effective ways and have diverse opportunities for diverse land forms and land uses but in the Town of Caledon they have chosen not to rehabilitate to a new, viable land use, rather they leave the strip mine in an as dug, rough conditions. Osprey Valley Golf has been built on the former Premier strip mine without a single dollar of aggregate industry investment. The Osprey lands were abandoned along with old maintenance sheds and buried fuel tanks.
Regulatory impact statement
“The proposed regulatory changes would improve clarity and certainty for aggregate site approval holders which in turn would be expected to result in environmental protections against any potential adverse impacts. Clear rules for the reuse of excess soil may provide an opportunity for a source of revenue that can be used towards rehabilitation costs.”
Aggregate strip mines exist in settled rural landscapes with residential communities, the notion of improved clarity and certainty must extend beyond strip mine owners to host municipalities and residents.
The use of the phrase, “would be expected to result in environmental protections against any potential adverse impacts”, is worrisome. Surely the objective must be to provide “clarity and certainty for environmental protections and strict avoidance of adverse effects.