Lake Ontario Waterkeeper comments on proposed amendment to the Aggregate Resources Act
Note: The offical submission is available for download here.
Background
Nelson Aggregate Co. (Nelson) plans to open an 82.3 hectares quarry in the City of Burlington and the Regional Municipality of Halton. This proposal requires approvals under the Planning Act (PA), the Niagara Escarpment Planning and Development Act (NEPDA), and the Aggregate Resources Act (ARA). The Consolidated Hearings Act (CHA) allows for a joint board hearing that would include applications under the PA and the NEPDA.
On September 8, 2005 Nelson requested that the NEPDA s.10.3 hearing, the MNR class A license application, and the PA applications all be heard under a joint board. It explains in its request letter that it would prefer that the matter move quickly from the decision making process through to a board file.
On June 27, 2006 a notice was posted to the Environmental Bill of Rights Registry inviting public comments on Nelson's request for an amendment to Ontario Regulation 171. This amendment would allow a joint board hearing under the CHA to include Nelson's application under the ARA for a quarry license.
Request
Lake Ontario Waterkeeper makes the following recommendations:
1. Nelson's request for an amendment to Ontario Regulation 171 should be rejected.
2. Nelson should be permitted to resubmit a request for an amendment to allow a joint hearing only after the Joint Agency Review Team (JART) have completed their review and a decision has been made on the ARA objection.
3. Any request for amendment must include the following in order to facilitate informed comment and decision-making.
a. A proposed composition of joint board members.
b. A proposal outlining which issues will be decided by the joint board.
Grounds
A. Assessment of this request is impossible without the final report from JART.
B. This request is premature because formal objections have only recently been served
pursuant to the ARA and no answer has been given.
C. The Consolidated Hearings Act and Ontario Regulation 171 gives no guidance regarding important issues, such as the composition of the joint board, and issues to be decided by the joint board.
A. Assessment of this request is impossible without JART's final report.
In October 2004 Nelson applied to amend the Burlington Official Plan, the Niagara Escarpment Plan and the Halton Region Official Plan. In 2004 the JART was created with a mandate to study the technical and background information necessary to process those applications. JART includes all relevant agencies namely, Conservation Halton, the Niagara Escarpment Commission, the Ministry of Natural Resources, the Ministry of the Environment, the Region Municipality of Halton and the City of Burlington. JART's purpose is to ensure that the review is comprehensive and efficient.
On May 12th, 2006, the City of Burlington published an interim report in which they outlined seven steps that must be taken, and nine important documents that must be provided, before a proper assessment of Nelson's proposal can be made. This list is attached as schedule A. Because of incomplete information such as this, JART will not complete its final report until the end of 2006.
JART's final report will assess the importance of the issues that are relevant to the constituent hearings. The significance of incorporating the ARA processes into a consolidated hearing cannot be determined until this assessment has been made. JART's final report may raise new environmental issues that cannot be properly addressed in a joint hearing. Without the benefit of JART's final report the public does not know whether or not a joint hearing is appropriate. For example, it is possible that JART's report will raise complex environmental problems that should not be dealt with by a board composed of members from other Boards who lack the relevant expertise. The JART report may even result in the withdrawl of Nelson's application.
B. This request is premature because formal objections have only recently been served
pursuant to the ARA and no answer has been given.
On June 30, 2006, LOW served Nelson and the Ministry of Natural Resources with objections to Nelson's application for the issuance of a Class A license under s.7(2)(a) of the ARA. LOW's primary recommendation was that the 45 day ARA public consultation period be delayed until JART has completed its review of the project. The grounds for LOW's request were that:
Nelson is asking to open a quarry in an environmentally sensitive area without full public scrutiny
The quarry design does not appear to be based on the most up-to-date science or best engineering practices
The effects of the quarry and Nelson's plans to mitigate them are still unknown
Ongoing investigations of Nelson's unauthorized activities suggest a lack of respect for the environmental approvals process
Other groups, such as Protecting Escarpment Rural Land (PERL), have also objected under the ARA public comment process. Amongst other things, PERL objects that Nelson:
drafted rehabilitation plans without sufficient local input
has completed only minimal and limited testing of karst features
has not vacated and rehabilitated the existing site as promised
has not studied the cumulative impacts of the existing and proposed sites
has not studied archaeological features within the JART process and with the latest assessment standards
has not fully accounted for the effects of noise, fuel consumption, and dust caused by heavy trucks
LOW has not yet received a response regarding whether or not the ARA comment period will be delayed. In light of these objections, Nelson's request for a joint hearing is premature.
C. The Consolidated Hearings Act and Ontario Regulation 171 give no guidance regarding important issues, such as the composition of the joint board, and issues to be decided by the joint board.
The CHA outlines the process for establishing a joint board. By section 3 of the CHA, a proponent first must give notice regarding the proposed undertaking to the Hearings Registrar. This notice describes the hearings that are or may be required under acts such as the PA or NEPDA (the Constituent Hearings). Then the chairs of constituent boards must together establish a joint board and determine its composition. The joint board may decide on the matters under the Constituent Hearings or may defer any matters to the relevant tribunal, body, or person.
This EBR posting does not include the notice regarding the proposed undertaking that will be submitted to the Hearings Registrar under the CHA. The posting has no information regarding the criteria for determining the board members. It also does not explain the criteria for determining which matters will be deferred to the relevant body and which will be decided by the joint board. To effectively comment on whether or not a joint board is appropriate, the public requires this information, as well as knowledge of the issues raised by the findings in JART's final report.
The practice of including an Aggregate Resources Act matter in a joint hearing under the CHA is not routine. The last time such a joint hearing was held was in 2002. The CHA itself omits the ARA from the schedule of the act, thereby excluding the ARA from the application of the CHA. Ontario Regulation 171 exempts all ARA matters from the application of the CHA except those listed. Nelson's desire to expedite the hearings process must not result in a premature hearing of the ARA issues.
Conclusion
LOW is concerned that JART's report at the end of this year may raise important environmental issues that should be considered as part of the proceedings under the ARA, PA, and NEPDA. Depending on the complexity of those issues, the expertise of the ARA board members may be insufficient to properly hear the matters referred to it. Without the benefit of JART's report, the public is also not in a position to effectively comment on either the ARA matters or the amendment to Ontario Regulation 171 creating a joint hearing.
Request
Lake Ontario Waterkeeper makes the following recommendations:
1. Nelson's request for an amendment to Ontario Regulation 171 should be rejected.
2. Nelson should be permitted to resubmit a request for an amendment to allow a joint hearing only after the Joint Agency Review Team (JART) have completed their review and a decision has been made on the ARA objection.
3. Any request for amendment must include the following in order to facilitate informed comment and decision-making.
a. A proposed composition of joint board members.
b. A proposal outlining which issues will be decided by the joint board.