Nelson Aggregates Hearing - January 19, 2011
3:00 pm
The Board has stopped the hearing for today, as planned, at 3:00. Mr. Donnelly indicates that PERL does not need to examine this witness. Conservation Halton indicates that they have approximately 30 minutes of questioning. The Chair reminds counsel strongly that their time estimates were inaccurate, such that the proceedings are behind by at least an hour, and that this is very unhelpful. The proceedings are adjourned, and Mr. Sinnige will have to return tomorrow for the rest of his questioning.
2:55 pm
Mr. Sinnige confirms that, in his opinion, the project would have no "unacceptable impacts". When asked by Ms. Thompson what that phrase means, Mr. Sinnige is says that he did not see anything that looked unacceptable within his area of expertise. He confirms that his opinion does not include the ecological aspects of the project, as this is outside his area of expertise.
2:30 pm
Based on estimates provided by counsel earlier in the day, the Board was assured that Mr. Sinnige would be finished by 3:00 pm today. As it is now 2:30 pm, the Chair steps in to remind counsel to move quickly and avoid spending time on topics already covered.
Ms. Thompson says that she only has a few more questions. Lawyers for both Conservation Halton and PERL still has to question the witness.
2:25 pm
Ms. Thompson shows the witness a Conservation Halton map. She asks Mr. Sinnige whether he is familiar with the Bronte Creek watershed, and if so, whether that map reflects where he understands that watershed to be. This map is not currently in evidence, and so would have to be accepted and marked as an exhibit by the Board.
Mr. Sinnige hesitates to say whether the map reflects his knowledge of what the Bronte Creek watershed is. Ms. Thompson proceeds without entering the map. She is asking Mr. Sinnige to explain what area he means when he refers to the Bronte Creek watershed and the Grindstone Creek watersheds. He says he would have to look up that information to confirm what exact boundaries he relied on.
When asked where the watershed data can be found, Mr. Sinnige says it is publicly available data from Environment Canada. He says that should give the catchment areas with latitude and longitude that Mr. Sinnige used to make his calculations.
Asked how familiar he is with the land uses in the watersheds, Mr. Sinnige indicates he does not have specific numbers (i.e. amount of land covered by groves) on him. He explains he was looking at an average mixed use number for his calculations, rather than specific numbers for things like pasture, crops, woodlands, etc.
2:10 pm
Ms. Thompson asks Mr. Sinnige about a table dealing with groundwater conductivity. She asks whether Mr. Sinnige's use of k value differs from Mr. McFarland's use (an earlier Nelson witness). Mr. Kahn objects to the question on the basis that Mr. McFarland was questioned on the table, and that Ms. Thompson's question implies an assumption about that table that Mr. Kahn asserts has not been founded. Ms. Thompson notes that Mr. Kahn may be helping the witness through the phrasing of his objection, which Mr. Kahn then alters. Ms. Thompson then rephrases her question.
1:55 pm
**One rule of these proceedings is that Parties can only raise issues or cross-examine on issues that they will be bringing evidence on. However, since there are many Parties to the hearing opposing Nelson's application, a strict application of this rule would result in duplication of evidence (as many Parties would bring the same evidence). To avoid this kind of duplication, the Board has accepted that Parties who intend to rely on evidence brought by another, friendly Party, can raise issues on that topic as if they were bringing the evidence themselves.**
Mr. Kahn, Nelson's lawyer, stood to object to the level of detail that Ms. Thompson is questioning the witness on. Ms. Thompson explains that she does know any rule or procedure that would curtail her cross-examination. She says the Parties have agreed to cooperate on witnesses that would be called on issue areas. Mr. Kahn says he understood that this Board has said Parties can not raise issues on areas where they are not calling evidence.
The Chair of the Board says this has identified a gray area in the procedural rules. She says she understands the NEC is not calling a witness on water based on the understanding that they will be able to question witnesses called by other Parties. The Chair asks Ms. Thompson whether she is relying on witnesses called by other Parties on water. If yes, then she would be allowed to cross this witness on water.
Ms. Thompson notes that she is following instructions by covering issues not covered by other counsel. She says she does expect to cover these areas in direct or friendly examination in the future, unless they are entirely covered by another Party first. She says she is relying on the City of Burlington's hydrogeologist primarily.
Mr. Northey, counsel for the City, confirms that the City has a hydrologist and a hydrogeologist they will call. He says the points that are currently being covered by Mr. Sinnige will be addressed by both of these witnesses.
The Chair asks Ms. Thompson to confirm that the cross she is currently conducting is related to the friendly examination she will later conduct of the City's witnesses. This allows her to examine the witness in detail and still be in line with the Board's rules.
1:42 pm
Ms. Thompson notes that the water table on the Nelson property is not provided or marked in the evidence. She asks Mr. Sinnige if it would have been of assistance to him to know where the water table is. He says it couldn't hurt, but he doesn't see that he needed it. He says he was given insight by the hydrogeologist on these areas.
Ms. Thompson's questioning highlights the fact that Mr. Sinnige's area of expertise is limited to surface water and some water in the overburden soils. Anything below that, in the saturated zone, is outside his expertise.
1:35 pm
Jane Thompson, representing the Niagara Escarpment Commission, begins her cross-examination of Mr. Sinnige. She asks whether there will be fuel trucks or fuels handled on the extraction site. Mr. Sinnige confirms that this is possible. She asks whether, if there is a fuel spill, those fuels could enter surface water on the site. Mr. Sinnige confirms that it is possible, in the event of a spill, that fuel could get into the sump. He notes Nelson would have to have a spill management plan in place. Ms. Thompson confirms that, if undetected, that fuel could go out into the surrounding water.
Ms. Thompson moves on to ask whether Mr. Sinnige was involved in designing the data collection plan for his analysis. He says he did write the work program Nelson should undertake. That program asked Nelson to monitor stream flow, sample for water quality at the sumps, monitor groundwater in-flows into the quarry and seepage out of the escarpment face for water balance calculations, hydraulic conductivities, and root depth calculations.
Ms Thompson has Mr. Sinnige confirm that he did not have input into what data would be collected to determine groundwater modeling. She confirms that he didn't ask for specific data with respect to K value calculations, which Mr. Sinnige confirms would be a hydrogeologist area.
Next, Ms. Thompson asks Mr. Sinnige to define a series of technical terms (i.e. saturated zone, aquifer, water table). This is relevant for the rest of the hearing, since technical terms may be used differently by professionals in various areas of expertise. Further, some of these terms may have common meanings that differ from their technical meaning.
1:25 pm
After lunch, Mr. Germain continued his cross-examination of Mr. Sinnige. Pointing out that there is a sliding scale of streams, from heavier to lighter flow, Mr. Germain asks Mr. Sinnige whether a reduction in groundwater flow would / could move those streams from the heavier classification to the lighter. Mr. Sinnige says that, while he can't confirm that, he agrees that it would not move them in the other direction.
12:25 pm
Mr. Germain is questioning Mr. Sinnige on what he told the ecologists regarding the change in ponding periods on the site. Mr. Sinnige says that, since the time period leading up to the hearing has been nine years, he does not recall specifically what he said to the ecologists, but does recall generally communicating with the ecologists over many conversations. This highlights an important consideration in a hearing process like this, where the lead up has taken many years.
We are now breaking for lunch. More to come this afternoon!
12:10 pm
Mr. Germain is questioning Mr. Sinnige in detail about the data values in his evidence. He is establishing how much variation there could be in these values under different circumstances. He is pursuing this line of questioning to support the evidence he plans to bring later in the hearing, which may include different data and different conclusions from those we've heard from Nelson's witnesses to date.
11:55 am
Mr. Germain asks Mr. Sinnige to confirm whether he or anyone working directly under him ever made a systematic examination of the south central wetlands on the site to look for seepages. This has been an important aspect of the cross-examination this morning: getting the record to reflect which data comes from direct observations from the Nelson property and which data comes from calculations or other sources.
11:45 am
Mr. Germain, for the Region of Halton, is now examining the witness. He asks Mr. Sinnige a series of questions about the planned pumping of water from the existing quarry into the surrounding water courses. His questions clarify important information - in one instance, he notes that the witness referred to ecologists, and asks which ecologists those are. The witness confirms that he was referring to Nelson's ecologists.
Mr. Germain then directs his questions to identifying what falls within and without Mr. Sinnige's area of expertise. For instance, he notes that Mr. Sinnige has expressed an opinion on the ecological implications of groundwater discharge to streams. Mr. Sinnige confirms that, as he is not an ecologist, this is not part of his official expertise.
11:30 am
This morning, John Sinnige is being cross-examined by the Parties opposing the quarry expansion. Mr. Sinnige, an engineer and a hydrogeologist from Golder Associates. His experience is in water resource engineering, including engineering wetlands, and he is appearing as a witness for Nelson. Last week, we heard from Mr. Sinnige in the context of direct examination by Nelson's counsel, Mr. Kahn.
Mr. Northey, representing Burlington, cross-examined Mr. Sinnige this morning. His focus was on the figures presented by Mr. Sinnige in terms of the amount of water in the wetlands on the Nelson property. He had Mr. Sinnige explain how the numbers were calculated and what meaning they hold.
Mr. Northey questioned Mr. Sinnige on the result of calculations determining the amount of water the wetland can hold when full, which is based on information like porosity and root depth. Mr. Sinnige explained that the resulting number could be taken to represent average depth, but is really a theoretical number, as it doesn't correspond to an actual measured depth of the wetland.
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