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DAY 37 - JANUARY 12, 2010

January-12-10

OMB Rockfort Hearing, Tue. Jan.12, 2010

Continuation of Cross Exam by Mr. Garrod (Region)

  • To Mr. Strong: You have been an observer at the hearings – what parts?
    --Answer; I was here to hear Mr. Hollingsworth and for the entire AMP evidence.
  • Did the MNR have any engineering expertise or hire any to review the application?
    --We didn't retain any engineers but we have some on staff.
  • Were there any MNR engineers involved with this application?
    --No there were not.
  • In the correspondence it is noted that the application is complex; does MNR regard this one of the more complex applications?
    --Yes
  • Is it one of the more complex to regulate and enforce?
    --It's not an application that can't be enforced
  • To Ms Douglas: Do you have an opinion on this?
    --It is enforceable under the ARA
  • So the MNR will give it the same level of effort as any other pit and quarry?
    --Agreed
  • How many pits in your district?
    --About 150
  • How frequently do you inspect?
    --It depends, a more active site at least once a year.
  • What is the typical level of effort?
    --Each site is different, some can be one to two days for the inspection, tried to be done annually.
  • How many of the 150 pits would get a one to two day inspection?
    --Maybe 50%
  • What proportion of your work time is spent inspecting?
    --About one day a week or 20-30 days a year.
  • I heard both of you reiterate yesterday that the AMP must have language that is prescriptive, enforceable and flexible?
    --Yes
  • And it has to be legally enforceable in a court of law?
    --Yes
  • Turning to the excerpts of site plan note policy, in the ARA. Quote: “The Site Plan language must be concise and free from ambiguity,” and I take it that this would apply to the AMP?
    --Yes
  • In the offence provision, “It is essential that the AMP be in a form that could be prosecuted under the law?”
    --Yes
  • And that is the MNR's intent?
    --Yes
  • In the regulation of the ARA, it says applications for licenses shall be in accordance with the "Standards" section?
    --Yes
  • Looking at the site plan standards, "The site plan requirements are all encompassing and no further need for additional information on the site plan", so does this tell you that except for the site plan there is no authority for the MNR to require more information other than what is on the site plan?
    --Correct
  • The site plan standards in the regulation stipulate extensively the details of what is required to be shown on the site plans?
    --Yes
  • In the extent of the requirements – where is it that MNR finds the authority to incorporate the AMP?
    --In paragraph 1.48.
  • Do you agree with me that not the entire AMP report would be incorporated, but simply the recommendations?
    --Yes
  • Over the page in 2.0 there is the checklist of reports required, am I correct there is no AMP report required as an item on the checklist?
    --Correct.
  • Am I correct that the intent of the MNR, is that the entire AMP report be incorporated into the site plan as a site plan note?
    --Agreed
  • Therefore every amendment to the AMP would be subject to the same site plan amendment rigor?
    --Agreed
  • How do you decide whether an AMP would need an amendment or not?
    -- (answer is unclear to me)
  • So is it MNR's intent to give itself the authority to amend the AMP without the required process?
    --No
  • Is it correct that any change to the site plan would go through the amendment process? --Yes
  • A major or minor amendment are handled differently – major must go on the EBR, minor amendments are just handled?
    --Agreed
  • Have you identified which parts of the AMP would require a major or minor amendment? --There is no specific breakdown, but Ms Douglas' recommendations help to clarify. The entire AMP is a conditional on the site plan.
  • If it is to be amended, what is the process?
    --That is under the MNR's approval and decision. Sometimes it may be a major and sometimes it may be a minor amendment.
  • You said all amendments are proponent driven, but the minister can make amendments?
    --Yes
  • Chair asks: the Major site plans are amended by the Area Supervisor?
    --Yes.
    And Minor amendments by the Local Inspector?
    --Yes
  • Does MNR agree that it would not be in the public interest to approve a quarry that had an AMP that was Non-descriptive, un-enforceable and discretionary?
    --Agreed
  • Isn't it redundant to have the summary J 1-10 report when the entire AMP is part of the site plan?
    --It is used as a summary tool to help inspectors.
  • If there were discrepancies, between the site plan and the AMP, which one rules?
    --If the license were granted the MNR would make changes according to what the OMB directs. If there were confusion the MNR would seek clarification of the Board.
  • In Mr. Strong's witness statement, you note how the MNR had requested of JDCL, how he (JDCL) was going to ensure the AMP conditions of the site plan and AMP could be enforced.  JDCL's reply was 4 years later, in Dec 2008. In that letter, it says in effect, "we will hire people who will do the job". Is that right?
    --Agreed
  • Does MNR agree that it is an unforeseeable event whereby another party would have to take over the site?
    --Yes, it is possible that something could go wrong.
  • Has the MNR assessed the likelihood of that?
    --No
  • Will the Ministry be responsible for monitoring the mitigation, the AMP requirements if JDCL does not do it?
    --No it would not.
  • Does the MNR accept that all the mitigation has to be in place for 80 years?
    --Yes
  • It is possible that JDCL does not fulfill that obligation?
    --Agreed
  • Will the MNR commit to take on all the obligations?
    --No
  • Is it the position of the MNR that Peel should take on those obligations?
    --We have no such expectations.
  • Does MNR agree that there not only has to be adequate securities, but some entity to take on the obligations?
    --That is not a policy of the ARA.
  • When a license is revoked in the ARA, TOARC can't be compelled to take on the obligations?
    --No
  • Would the AMP be considered part of rehab policy of TOARC?
    --No
  • Looking at the proposed Nelson expansion with an AMP, the joint agency panel (JART) report deals with the AMP. The AMPs are accompanied by agreements and commentary about the need for confidence in the mitigation measures.
  • Do you agree with the quote that an AMP should not be a tool to defer work that should properly be done before approval?
    --To the extent possible.
  • Chair asks--did the Ministry sign off on this JART report?
    --They did not. This is a compilation report.
  • Does the MNR believe that financial securities should be provided?
    --It’s not legally mandated in the ARA
  • You are a planner, if there was authority for the MNR to enforce financial securities do you think that would be a good idea?
    --I have no opinion on that.
  • In the JART report there is a section about ensuring the public is not left with the financial responsibility.  If the MNR disagrees with the protection of the public purse, how does the MNR see that the public interest is looked after? Would the MNR prosecute the company?
    --Yes
  • Can you require them to do the work?
    --Yes
  • And if there are no financial resources, how does that get done?
    --(silence)
  • How many abandoned, un-rehabilitated pits do you have now?
    --I don't know the answer to that.
  • Looking at ARA instructions: re Truck traffic, it directs you to have regard for the Municipal commenting authority and that ensure all permits are issued before a license. Do you agree that in this case, it would be a good idea to follow the ARA instructions and note on the site plan that a permit is needed from the Region of Peel before material is removed?
    --Generally site plan notes are limited to controlling truck traffic after it leaves the site.
  • In your opinion, wouldn't that be a good idea?
    --(Ms Douglas) That's the policy, but I'm not aware of that ever being done.
    --Mr. Strong's opinion is that it would be a good idea as a license condition in this case.
  • Looking at the PPS and your witness statement, Mr. Strong: Your opinion is based on the assumption that the future work will take place and will be done?
    --No, the work in the AMP will achieve those results.
  • For instance, the Appendix I proposes work that may be done – it has not been completed yet has it?
    --Yes, it is a conceptual framework and contingency plans that have been done.
  • You are telling me that further detailed work needs to be done?
    --The approach is laid out, not all the details.
  • So that work has not been done yet?
    --No just the approaches.

Cross examination by Mr. Barnett (Town of Caledon)

  • To Mr. Strong: In the event that JDCL does not fulfill its obligation, is it the expectation of MNR for the Town to take this on?
    --No
  • In dealing with the process of how site plan amendments relates to changes in the AMP going forward; would changes to targets be amendments?
    --No, the AMP would look after the target changes. JDCL wants the flexibility to be able to change targets
  • At what point does the change demand an amendment?
    --It depends; if it was a significant change to the operation would require a change to the site plan.
  • You indicated earlier that operation of the AMP were mostly mitigational and not rehab?
    --Yes
  • Should the targets in the recharge wells be changed, they don't need amendments?
    --Correct
  • So those changes are outside the policy and procedures the Ministry has in place?
    --Disagrees
  • Madame Chair indicates that the Board is having difficulty discerning the difference in approval process of major and minor changes to the AMP.
  • Looking at an example; modifications to adjusting historical water target levels must have approval of MNR.  Does that approval trigger a major amendment?
    --No it does not.
  • Are the targets important operational features?
    --Yes
  • So if setting targets are important operational things, they are being dealt with outside of the policies of the procedures of the ARA?
    --Yes
  • Looking at some comments by MOE: regarding the costs of the grout curtain; it creates concerns as to the feasibility of those operations being carried out 50 years after the revenue stream has ended?
    --The MNR did not have concerns on costs.
  • The letter back to MOE from MNR in 1999; the MNR was asking questions about this grout curtain feasibility. (no written response came back to this from MOE)?
    --Correct
  • JDCL’s response to this “too costly” concern was its view is that close to market source, offsets this concern. Is this your opinion?  Isn't it true that there is no difference in  approval or costs having to do with the closeness to market?
    --Agreed. Each site has a stand-alone legal requirement for mitigation.
  • Is MNR satisfied that the AMP of the PSW wetland to the NW will be satisfied even though there is no private access?
    --Yes
  • Has MNR considered the riparian rights of the owners of this wetland?
    --No, they have not been considered.
  • The PPS indicates that Municipalities are the most important level of implementation of land use plans at the local level?
    --Yes
  • Are you aware of the Town's policy OPA 161 and that it is approved Policy by the Province and the Board?
    --Generally, yes but MNR did not specifically sign off on it.
  • In the PPS there are prescriptions for no adverse effects from noise and dust.  Have you reviewed the Town peer reviews for those two disciplines?
    --No
  • Looking at OPA 161, did the MNR consider noise and dust ?
    --No they did not look at 161.

Cross Exam by Mr. DeMelo (CVC):

  • To Douglas: Looking at inspections; so the one day per site estimate includes the desk work time on the file as well?
    --Yes
  • The nature of the AMP requires more time for inspections?
    --Agreed
  • How many times in the document is MNR cited for change approval?
    --I do not know.
  • Plus there is a yearly report and a five year review?
    --Yes we would review the technical information, the changes, and other expert reports.
  • To Mr. Strong: I'm presuming that MNR would not expect CVC to take over the obligation for Rockfort?
    --No.
  • Looking at the JART report, MNR agrees with some, and some are not agreed to?
    --Yes
    I want to see what MNR agrees with or not in the JART:
  • An AMP would accompany a scientifically sound proposal?
    --Yes, agreed.
  • Baseline monitoring, you see as something that will come later?
    --It's further refinement.
  • Is there any reason that it couldn't be provided now?
    --No
  • Is the MNR's position that the targets could be developed later?
    --Yes in Milestones, subject to MNR approval.
  • Is it the MNRs position, that the AMP is a bottom-up approach meaning the baseline foundation information comes first?
    --Agreed.
  • That the intent of the AMP is not a way to defer mitigation work to the future?
    --No, the necessary background work needs to be done first.
  • Don't you also have to establish the function of that feature, before targets are set?  Can an AMP be used to garner a defferal?
    --A baseline needs to be established.
  • If you don't have access to a site, doesn’t it diminish the information available?
    --Yes
  • One of the limitations identified is that there may be problems with access?
    --Agreed
  • If the Board should grant a license does the MNR have the power to force access?
    --MNR does not have that power.
  • So it would then mean that the more information you have up front, the better?
    --Yes
  • With regards to changes to AMP, the monitoring well data is essential to understanding what is going on?
    --Yes
  • So the locations of the monitoring can be changed with MNR approval?
    --Yes
  • And that change could impact the monitoring well data?
    --Agreed

Cross Exam by Mr. Webb (CCC)

  • To Mr. Strong: Your education is in planning, not a technical expert?
    --Agreed
  • Are you aware of the reports from the Environmental Commissioners Office (ECO)?
    --Generally, but I have not specifically seen this report.
  • Looking at the ECO report in 1997-98 when MNR inspections changed to a self- monitoring system, can you help us with that?
    --(Douglas) Yes, the '97 legislation changed so that the inspections changed from onsite annual visits moved to a paper procedure (a CARS report that the operator fills in) and a 20% minimum audit of pits was a requirement.
  • Update of the 2003 ECO report on MNR compliance: states that the information is commonly lacking in the CARS reports and the number of pits visited were 13% in 2002 and 10% in 2003?
    --MNR Aurora office is meeting its 20% target.
  • Are you making the commitment that MNR will inspect annually?
    --I'm committing it will be inspected more often than those in reserve.
  • The ECO reports it continues to receive complaints from the public about aggregate applications compliance and rehabilitation. Is there is a rehab plan for the Rockfort quarry after phase one?
    --(Douglas) Not that I know of; it was not contemplated that the extraction would have to cease after phase one.
  • Report in 2007 by ECO concludes there is abundant evidence that MNR lacks the resources to carry out its mandate in aggregate oversight. Can you assist in that?
    --In 1997 MNR lost 50% of their staff in Peterborough.

Cross exam continues tomorrow.