OMB Rockfort Hearing, Cross Examination of James Parkin by Stephen Garrod Dec 8/09

• The Region of Peel (ROP) and the role of Peel are a commenting agency?
  – Agrees.
• ROP recognizes the aggregate industry but also realizes that they have to strike a balance with everything else, provides appropriate policy framework for aggregate in Peel?
  - Agrees
• Peel does not have a dolostone quarry whereas Halton has several.  Peel never has had an application for dolostone.  Should the board judge differently because Peel does not have a quarry in production?
  -- Answer: Aggregate production should be on a fair share basis.  Standards should be the same no matter what.  Except when considering dolostone supply – each jurisdiction should produce as much as possible.
• The Board should not accept an application just because of this factor?
  -- Mr. Parkin: Applications should be considered in a general way.
• MAP in ROP HPMARA – traced the history of this; however, no actual map when this was adopted.
  -- Mr. Parkin – believes mapping has become the acceptable way of doing things; i.e. having an actual map.
• 1997 Peel agreed and a map was issued – Halton does not have a map in the official plan.
  - Evolution of quarry designs- increased need for regulation and overseeing because of more AMPS, monitoring, etc.
  - Dufferin and Milton extensions are good examples of this new type of quarry
  - Milton is the best comparison, degree of regulatory overseeing is enhanced by the agreements between Halton,  Halton Conservation Authority and Milton
  - Planning opinion - strikes appropriate balance - satisfies Provincial Policy and relies on the technical analysis of JDCL team and subsequent work with MNR – Plans that have not yet been approved by the MNR; i.e., contingency plans-
  - Relies on and assumes that the AMP will be carried out for the 80 years and the operating system will go on for 80 years and also that the grout curtain will work as it should and finally, that access agreements will go on for 80 years. Mr. Parkin states, however, there could be alternative sites.
  - Would have to comply for 50 years after the revenue stream ceases.
  - The OMB in making its decision has to have proper regard to the PPS of 1997.
   The Natural Heritage Section- development and site alteration may be permitted on adjacent lands, to the natural features if it has been demonstrated that there will be no negative outcomes.  (Note the use of the past tense – HAS been demonstrated - in essence asking the Board to defer its judgment to the MNR?)
• Enforceability:  Site plans and site plan notes – are they enforceable?
  - Answer: In general, yes – site plan and notes in conjunction with the MNR are the only regulatory tools.
• Is there a proposed draft of the actual license?
  - Not right now- license does not refer to the site plan
• What name would the license be under? James Dick Construction? 
  - Will look up the application.
• AMP: Are the 5 reports needed to interpret the AMP?
  
  -The reports go along with the AMP and assist with understanding what is required. The comprehensive plan for the quarry is set out in those reports.
• In determining compliance it may be necessary to refer back to these 5 reports. Yes? 
  -  Agreed.
• The AMP is an integral component of the Plan, yes?
  - Agreed
• Questions continue as to what is enforceable; i.e., in the AMP are there suppose to be specific actions to remedy certain situations?
  - Example – Design new amphibian areas in the north east areas-
  - Operator would be required to understand amphibian habitat over long term – is this enforceable? Could be charged with failing to understand?
• Site Plan Notes: Page 2 Section A, General Operations: Enforceability questions continue.
  - Limited Variations to the site will be permitted depending on variations during extraction.
  - Major deviation requires site plan amendment. What differentiates a major deviation from a minor one?  Have to look at each one individually.
  - There are limited variations that do not require amendments.
• Operation times for the site: Saturday for maintenance and occasional shipping- What is occasional? 
  - No definition of occasional. 
• Liaison committee: Would they receive all the written material between MNR and JDCL?
  – Not determined yet.
• Berm conditions: Importation of fill – expected quantity – half million cubic metres- any reason why they aren’t specific? A lot of words like generally, primarily, words that are not specific.
  - Answer: Market conditions would determine this. Is this enforceable or not? Meant to be a general guideline.
• Haul Routes: Travel on certain roads prohibited, and right now travel on the proposed haul route is prohibited for certain trucks. No provision to not allow hauling on these roads before they are upgraded. Would this be enforceable by MNR?
  - Proposal re roads should be on the site plans.
• Water resources management: Requirements of AMP may be amended from time to time - subject to the written approval of MNR. Any changes that do not affect the operation of the quarry do not require written approval of the MNR.  The AMP can be changed at any time with MMR approval. Should the AMP be subject to the same process as the site plans? 
  - Parkin: I think it should be the same process.
• If the entire AMP is to be enforceable by the site plan what is the purpose of the summary of the AMP?
  - Answer: Clarification and is possibly redundant.
  - Site plan notes and AMP are to be looked at together; however, the AMP document governs. Different language used in both documents. Vary subjective terms.
• Response actions: To what degree are these enforceable? Are they in fact enforceable?
  - Answer: YES
• Questions re Aggregate Resources Trust:  Are we to assume that the aggregate resources trust is part of the long term scheme to pay for the quarry?
  - Legislative authority for this trust-issued by the Ministry. The current trustee is the Aggregate Producers Corp.  Minister could revoke a license. A licensee might not be the party who owns the land. License holder might not have any assets.
• After 30 years what happens should the licensee decide not to do anything more?
  -  MNR could revoke license, prosecute, order compliance, etc.,
• BUT the company could have no assets. Are there any provisions in the act that would make directors responsible?
  – Not sure.
  - The trust can enter the land but does not have to and they can rehabilitate but are not required to - only to the degree that the trustee feels necessary.  At the discretion of the trustee as to whether they monitor and carry on with the AMP, etc. No regulation by the MNR to have any power to enforce the trustee to do anything.

Tues afternoon, Dec 8/09 - Cross Examination of James Parkin continues:

By Chris Barnett (Town of Caledon)

Looking at Mr. Parkin's testimony regarding Need and Demand:

• There is no one solution to the need problem within any one site?
  --Agreed
• The projected demand from 2003-2014 will be about 62 Million tones, so Rockfort would contribute at max production only 2.5 % of the demand per year or a total of 4% of the total?
  --Agreed
  
• There are other aggregate proposals being brought forward in the GTA that will contribute if they are approved?
  --Agreed
  
• If there is a shortfall, the cost of the material will go up?
  --Agreed
  
• Would you agree there's no specific policy reference to keep the cost of material low?
  --Agreed there is no reference to cost
• And there is no test that says other things should be given less weight if the costs become too high?
  --It's one of the things to be balanced.
• But there is no direct reference to cost in the weighing?
  --Agreed
  
• Looking at the Aggregate Resources Act, it directs to look at the effects of the proposal on the environment, and nearby communities?
  --Agreed
  
• Looking at the PPS (Prov. Policy Statement), it states that Official Plans of the Region and Municipality are the most important vehicles for implementing the PPS?
  --Agreed but they still should have regard to the PPS.
  
• So given that you and aggregate industry were involved in the development of Plans at the local levels, the interests of the aggregate industry and your client were protected in the Municipal and Regional Plan?
  --Yes they were.
  
• Looking at the PPS wording about extracting” as much as is realistically possible", that would be in terms of balancing with the other policies that are involved?
  --Agreed
  
• One of the provincial standards is avoiding safety issues in the planning and designing, (among other things) of aggregate mining; that they "are appropriately designed to prevent adverse effects". The definition of “adverse effects” is taken out of the wording from the "Environmental Protection Act" (EPA) which includes “loss of enjoyment of property” and the same wording was incorporated into the PPS and so the Board can look to this definition when determining whether a negative impact or impacts may occur?
  --Yes, I guess so.
  
• Over the last 10-15 years, concern over the protection of the environment has increased for natural heritage?
  --Agreed
  
• In fact the 2005 PPS, reflects the evolution with respect to the Nat. Heritage protection?
  --Agreed
  
• The 2005 PPS definition of negative impacts has evolved as well, i.e. the words say:" no degradation" of the Nat Heritage feature and functions; its health and integrity has a more stringent test, than just "loss" in the 1997 PPS?
  --Agreed it's stronger.
  
• So it is appropriate for the Board to consider the way in which the PPS has evolved in the last ten years?
  --No I think the decision should just consider the '97 policy statement.
• Looking at the Niagara Escarpment Plan: The site is not in the N.E. Plan
  --Agreed
  
• But the site IS in the N.E. Planning Area (area used during the establishment of the Plan)?
  --Agreed
  
• You agree that the wording says, that when the Plan is under effect, no Municipality can pass a by-law that conflicts with the Plan?
  --Agreed
  
• So the Board cannot put in place a bylaw that conflicts with the NE Plan?
  --Agreed
  
• One of the objectives of the Plan, is to maintain and enhance the nat. heritage of the Plan?
  --Agreed
  
• So a bylaw cannot be passed which is in conflict with that objective?
  --Agreed
  
• Looking at the CCRS; you were engaged with the process during the time the CCRS was on going?
  --It started in Oct-Nov of 1996 and we were retained in Nov of 1996.
  
• Were you involved?
  --Occasionally.
  
• That was during the time Mr. Sweetnam was on the Community Advisory Committee?
  --Yes.
  
• Looking at the eight criteria in the CCRS for values, you characterized the last four as more subjective?
  --Agreed
  
• At the end of the day, the wording states that none of the criteria were given greater weighting?
  --Disagree, some of the criteria have more relevance than others
  
• Looking at criteria #5, impact on the Nat. environment; at Rockfort, you would agree there are groundwater sensitive environments, and endangered species habitat off-site from the site?
  --Agreed
  
• JDCL appealed OPA 161 in its entirety, including the maps?
  --Yes
  
• JDCL signed off on Schedule B of 161 which included area 5a?
  --Agreed
  
• Yesterday, you talked about the Town’s OPA114 exemption to aggregate producers to do a fiscal study re fiscal impacts to the Town; note the language in the clause says it is applicable until the CCRS is complete, and the CCRS is now complete?
  --Agreed
  
• To satisfy OPA 161 to get access to roads, there are a number of things you have to satisfy – in this case, regardless of whether it is Resource or Reserve you have to assess the economic, social and environmental impacts as parts of key elements of assessing the test?
  --Yes
  
• You rely on the opinions of the predictions of the Team (on traffic, noise, dust, cultural heritage etc) to say that the impacts were acceptable?
  --Agreed
  
• Noise and traffic changes; that you view that volume of traffic and noise as an acceptable impact?
  --Agreed
  
• In the traffic evidence, your opinion is that this level of traffic would be comparable to other operations and it's no worse than any other so it is acceptable?
  --Agreed
  
• So from the view of the people living along the route, it should be acceptable if it's no worse than what is going on elsewhere?
  --Agreed
  
• There is a bylaw that restricts trucks on that route today?
  --Correct
  
• In terms of impacts – the relative impacts between no trucks of today compared to a haul route in the future, would be an acceptable change?
  --Well, there is some truck traffic now and the Belfountain study contemplates the roads will be upgraded to accommodate truck traffic.
  
• In terms of the social impacts, your reports have not collected any scientific data about the impact to the people along the haul route?
  --Disagree, there is data.
  
• There is a disagreement between the Town and JDCL about the robustness of that data?
  --Yes
  
• You did a social impact for Graham Brothers pit?
  --Yes, because the Town asked us to, but it's similar to what we did for Rockfort.
  
• In the new chapter your client has submitted, the way the table has been moved it would mean that the drill noise would not be subject to the restrictions?
  --Agreed
  
• Looking at the Regulations for levies collected by TOARC; the 1/2 cent goes to TOARC, so looking at Rockfort, over 30 years TOARC would receive $195,000 for abandoned pits from Rockfort?
  --Correct.
  
• In OPA 161, in order for approval, all the tests and study requirements must be met
  --Yes
  
• For all the evidence we have heard about need and demand, there is no trump card in the policies that can be played saying--"yes, aggregates get to be extracted no matter what", but there are many cards that say it cannot be extracted unless all the tests are made?
  --Agreed

Cross-examination will continue tomorrow, Wed. Dec 9/09.