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DAY 73 - MAY 18, 2010

May-18-10

Final Arguments for JDCL will be handled by 3 lawyers: Mr. Tzekas, Mr. Buhlman and Mr. Richards.

A binder of final argument was handed out and a case brief (cases that support his argument) – 3 more binders. The oral argument will be only a summary of what is in the binder.

JDCL final submission to the Board

Mr. Tzekas - requests:

  • The Board should identify theses lands as zoned "resource" lands and not reserve.
  • That the land use is changed to industrial extractive.
  • Request zoning bylaw 200650 amendment.
  • That MNR issues a "Class A" quarry license.

Overview of the last 8 months:

  • Ask the Board to set aside the politics and passion of the moment and listen to the evidence.
  • He believes the experts are not that far apart, with a few exceptions.
  • When the science is assessed, this is a remarkable and safe opportunity to extract a scarce resource.
  • It is in the public's interest to have this resource developed close to market.
  • The experts show it can be safely developed. This is the new normal.
  • Water supplies are protected with these plans and the mitigation are well designed and technically feasible.
  • The existence of the resource in this area has been known a long time – HPMARA mapping and the CHPMARA mapping and the CCRS. They feel it is time to complete this long process and the best way to preserve the resource is to develop it
  • Rockfort site could not be better—close to market—savings in truck travel. All roads in the area are planned to carry truck traffic.
  • Benefits of the quarry are obvious. But there has been regrettable negativity—the declaration of war by the community before technical studies were done. This polarized everyone and JDCL was never able to bridge the gap to find solutions. In addition: The failure of many experts to look at the CBSES and the failure to meet to work things out. JDCL says that the CVC work was relied on by the Town and the Region so it all flowed from there.
  • The opposition was neither fair or reasonable and not based on the science or the experts. Once that was the new reality it was very difficult to turn that around. The amount of time and opposition in this case was unprecedented.
  • It's the right quarry in the right place at the right time. Delaying it will only risk that this resource will be sterilized which is not consistent with the PPS. Brampton is growing at a frantic pace. It is time to open up the resource.
  • We called on Mr. Hollingsworth from MNR who reported how vital this resource is to Ontario. It is a provincial interest.
  • They recognize that any balancing exercise has to happen but he feels that some partners who did a balancing exercise did not do an unbiased job.
  • They feel that the Provincial interest should weigh the heaviest.
  • On the issue of need; it doesn't have to be argued, was originally to protect the applicant's case. JDCL says that just because it doesn't have to be argued doesn't mean that the Board shouldn't consider or understand it.
  • Mr. Parkin spoke eloquently about how the significance of the resource matters.
  • Ms. Arsenault is an economist and she characterized the crushed stone issue in the GTA as critical. In addition the supply chain for crushed stone in the GTA is very narrow owned by only two producers.
  • Peel needs two or three Rockforts to satisfy its supply needs. Looking at other sources--Flamborough is not coming on stream any time soon.
  • Rock quality at this site very high and the policy is taken into account in the ARA and the Town plan. The demand for this stone will increase in the future.
  • Buses put more stress on the roads than trucks.
  • Intensification strategy will depend on stronger buildings and stronger materials.
  • Rockfort depth is good because it means a smaller footprint for the site.
  • GTA needs significant quantities of crushed stone and Rockfort can provide in part, what is needed.

Mr. Richards – talking about Traffic, Transportation and Haul Route:

  • The experts are in agreement with all significant issues.
  • There are no outstanding transportation issues that can't be resolved within the regulatory policies.
  • As a responsible Municipality, the Council will take into account the decision of the Board through the development process. So has the NEC in a staff report regarding the Belfountain ESR, despite what Ms. Pounder said.
  • The Rockfort site is close to market and the policy is clear in the PPS. Rockfort is uniquely close to market and is environmentally friendly.
  • There would be 5 million kms saved at 1.5 million tonnes per year by using Rockfort.
  • The roads are designated as major roads—their planned function. The site was purchased with that in mind.
  • Olde Baseline improvements were put on hold because of this application.
  • There is no requirement in OPA 161 to produce a separate social impact study.
  • OPA 161 also states that in principle, given the significance of the resource that a haul route should be available.
  • An average day would have 318 loads per day for 2.5 million tonnes per year.
  • Haul route is of least adverse impact. Town and Region were consulted.
  • Route does not pass through any built up areas and mitigation can lower impacts to NEC.
  • Olde Baseline was noted as needing the most work in terms of site lines.
  • Mississauga Rd also noted as needing upgrades for safety.
  • The quarry road improvements on Olde Base and Mississauga would bring them up to the standards of the area.
  • The issue of sequencing of approvals—they submit that the Board should decide the land use first and then the transportation issues should follow that.
  • A financial agreement will be entered into by JDCL with the Region for the roads.
  • People, agricultural equipment and gravel trucks all have a right to use the roads and are a necessary part of the industry.
  • Looking at a Ramara case the Region should not be able to extract unreasonable demands of the applicant (i.e., JDCL pay for everything when upgrades were already planned for the roads)
  • He requests that the Board oversee the roads negotiation for 6 months to ensure fairness.

Mr. Tzekas - speaking about blast design:

  • All of the blasting is within the acceptable limits and Town was satisfied.
  • There will be a pre-blast survey in the neighbourhood.
  • MOE guidelines restrict and limit the noise and JDCL experts believe they are acceptable.
  • The grout curtain installation is a construction noise and meets the guidelines.  Dr. Bruce believes the curtain can be installed in 10-12 rig years (3-4 years) and no single home will have that noise for the whole time. Grout curtain noise policy is in place starting in Phase 3.
  • Top hammer drills create 86 DBLs and another drill will create 80 DBLs. Technology is changing to meet needs.
  • On-site receptors have the right to be protected from the noise and site plan will reflect that.
  • There is no MOE guideline associated with haul route noise. The noise would not be as great as other haul routes like around 5B on Hwy 24.
  • JDCL can control its truck through its truck policy.
  • This particular proposal has stifled the Olde Base upgrades, so the truck traffic is less than it would have if the upgrades had gone ahead.
  • Mr. Homenuk (expert for CCC) found the noise levels acceptable in one case of 65 DBLs acceptable for Creston Sand and Gravel.
  • JDCL has addressed noise, to acceptable levels.
  • With air quality the experts were very close in their opinions. Guidelines have been met.
  • Looking at Cultural Heritage, the record shows that the Ministry was very active.
  • No experts identified Rockside hamlet as having any special attributes.
  • Cultural Heritage was an important factor considered in CCRS process.
  • The report from the 1998 peer review, there was no "show-stopper" in the report from the Town.
  • Ministry had no concerns by 2005 and signed off on the application.
  • JDCL maintains Mr. Shinemans' conclusions in the 2005 Rockside study does not comply with the Regions and Town's policies.
  • JDCL maintains the Board should not rely on Shineman's evidence.
  • They have not done a cultural heritage assessment along the haul route, but that can be done during the EA.
  • All aspects on archeology have been signed off.
  • On visual impacts:  the experts all agreed the site is well screened from the north, the south and the east. That's significant. The focus was Winston Churchill.
  • Impacts will be reasonable and expected to what would occur in a situation like this.
  • Ms. Naylor (Town) felt there would be unacceptable impacts. Her maps used a very sensitive program and even so there were few properties that would be affected. This confirms that the site is very well shielded.
  • The berms are an area of contention. JDCL feels the berms would effectively screen the operation. Ms. Naylor thinks the berms themselves are unacceptable. We suggest this position is extreme and would nullify any extraction.
  • The NEP guidelines insist you put up berms.
  • Visual impacts were considered in the CCRS.
  • The berming is going to be of extremely high quality. It will be planted, etc.

Mr. Buhlman - speaking about water and engineering:

  • Overview will be at a pretty high level because he thinks there is only one real issue and that is when the additional work that is proposed to be done, is before licensing or after. 
  • Looking at the table of contents—he has approached it in the order of the evidence that was led.
  • Natural Environment /Hydrogeology/ Engineering/AMP impact assessment/Timing of additional work.
  • What is not at issue:
    • Mitigation must be there and everyone agrees with that. Mitigation and AMP are the integral.
    • Characterization of the site has agreement.
    • CBSES has been agreed to.
    • Agreement in the AMP in that there is uncertainty in the natural environment and there always is.
    • Everyone agrees that the AMP as a principle is appropriate.
    • The Model—there is agreement that it is a helpful tool and there is uncertainty with all models. There is disagreement on the type of model.
    • The significant issue is when is the work for the milestones to be done (before or after) with regards to the license.
    • There is disagreement from the CVC and the CCC with regards to timing.
    • The MNR has no issues and have signed off.
    • The Town/Region water experts are okay with the staged engineering approach but it's a policy decision.
    • Mirek Sharpe had problems with the access to off-site mitigation.
    • Mr. Sampson did not look at AMP Appendix I for mitigation.
    • Mr. Morris did not contend a fisheries HADD as per DFO.
    • Mr. Blackport gave his opinion to DFO in 2003 that the impacts would be okay.
  • Engineered quarries will be the norm going forward.
  • The Milton quarry and Duntroon have mitigations. The issue to be determined is if the plan will sufficiently protect the off-site features.
  • Mr. Goodban and Ms. MacMillan showed nothing on-site. The offsite features—the natural environment around the site is already heavily altered and is tolerant to change and has adapted to that over the years. They also show that the features are functionally connected to the groundwater. That's why the hydrogeology is so important and the mitigation.
  • The identification to the sensitive features—cold-water fisheries to south and southwest are NB. This is where the conflict begins—was there enough work done to study this? CRA has the opinion that enough work has been done to show that no impacts will happen. They understand the hydro G and the amabel aquifer in the area. There are no preferential flow zones on the site. Mr. Hims and Dr. Carter say more work needs to be done. Mr. Blackport, in 2003, said the AMP would address that. The answer is in Hims and Carter's witness statement in that the work can be done after licensing as long as there is a staged approval. The CBSES says in fact that the work can be done before or after.
  • The issue about more work has been resolved since JDCL agrees he will do more work after licensing is given in the staged approach.
  • JDCL proposes to recharge water at different depths to answer different preferential flow zones—or you can grout.
  • The issue about the grout test—there were problems with it—that it was a learning experience. Dr. Bruce concludes the site can be grouted. Dr. Carter says that yes it can be grouted.  Mr. Naudts said yes you can grout but he has concerns about cost and pollution.  Buhlman maintains that Naudts is biased and the Board should give no weight to his evidence.  Mr. Naudts overstated some things in his evidence for example: his analysis on the number of times of failure (every 13 to 65 days) when there are thousands of successes.  He went outside his area of expertise he was becoming an advocate.  When he was looking at the amount of water that could flow in, he was estimating 10 to 30 times the flow of the Credit River—this is over the top.  Another example was his use of a fissure that was not what you would find in this setting. Buhlman maintains the Board should listen to JDCL's experts. He submits that Naudts' evidence should be given no weight.
  • Looking at Mr. Hims' evidence about Duntroon had a curtain only as a contingency. There was no demonstration. JDCL has it as one of their Milestones. It's the same with the recharge systems. These have to be demonstrated to work before excavation.
  • These technologies work and will be demonstrated to work. An independent peer reviewer will be hired by MNR paid for by JDCL.
  • The model had controversy. Over the Amabel being a single hydrographic unit. Mr. Hims and Blackport agree it's a matter of professional judgement. Mr. Hims and Blackport agree that EPM is an appropriate method. Dr. Howard said no it needed to be a fractured model. The debate is about a single layer or multiple layers. He submits it's an issue that the Board doesn't have to decide right now; because JDCL will be re-visiting the model in the 3 years before quarrying even starts. Therefore the issue is—should that be done before the license or after.
  • Looking at the "blob" as to how the hydro-conductivity was determined. It was shown that how it didn't match the data is standard practice.
  • The model is just a tool—one of many the hydro-geologists use. Monitoring is the key and JDCL will be relying on the monitoring that will be done. The AMP is what is key and what will demonstrate there will be no negative impacts.
  • Looking at Dr. Howard's evidence: He took issue with the work CRA did, and with the model. I included the case I mentioned to Dr. Howard—I submit it demonstrates he also became an adversary and that the Board should reject his evidence. He opined that the AMP would fail—he has never designed one or worked on one in a quarry setting. He did not even read all the reports. He went on about the K V equation but finally agreed you did not need to know the V in order to protect the feature as long as you maintain the levels in the sentry wells. He criticized the CRA about that demonstrating his adversarial nature and he was evasive on a number of occasions. He talked about tracer testing and contamination. He said that geotechnics was missing but in cross-examination he agreed that packer tests give you more information. Looking at all of this, the Board ought to look at Dr Howard's evidence with skepticism.
  • The AMP:  it is agreed that it is an appropriate device. Its purpose is to deal with uncertainty. There is uncertainty in the natural environment and the AMP is the way to deal with it. It's progressive, proactive and protective. Subject to MNR approval.
  • The Goodban and Macmillan expect no negative impacts—it doesn't mean there won't be changes, but no negative impacts. It is anticipated there will be drawdown to the east, but no negative impacts. More work has been done on this since 2000 and appendix I which maintains the wetlands. This is a precautionary approach to the natural environment. Mr. Sharp had problems with the targets in his witness statements but he cross it out.
  • What about this "partial substantive failure" of the mitigation—Mr. Blackport agreed it is not likely to happen. Mitigation is in place and will be monitored. If something fails they'll know about it. Mr. Naudts talked about contamination; we know it's going to go back into the quarry and the MOE will require a certificate of approval with discharge criteria.  The bottom line is the mitigation will work.
  • Mr. Sampson disagrees but he didn't look at Appendix I, which is critical. Drawdown is not his area of expertise and his analysis is wrong. According to Appendix I the wetlands will be maintained and there will be no change to the feature and functions of the wetlands. He suggests that the Board should be skeptical when it comes to Mr. Sampson's evidence.
  • So the real issue is when the work is done.
  • Monitoring off-site – we do know that access has been provided in the past and one can hope. The access is important so one can hope that the public will continue to provide location to protect the features. If not one would hope the Municipalities will grant some right for monitoring. Access has been granted in other cases.
  • In Mr. Rowley's evidence, it was interesting—he did not say he would not give access.
  • These properties are large and access would not be as intrusive. JDCL would try to work with the neighbours.
  • JDCL takes everyone's concerns about their water very seriously. That's what the mitigation systems are all about and alternatives are provided just in case they are needed.
  • The timing of the extra work: He submits it should be done after the land use decision is made to the satisfaction of the MNR.
  • The opponents are saying do the work before the approval, yet they are opposing the approval on almost every basis. The costs alone make it fair to do the work after the license is granted. Until the license is issued there are no guarantees that the quarry will ever be approved. Sufficient work has been done that the quarry can safely be done.
  • The evidence demonstrates the quarry meets the ARA. The mitigation is acceptable—AMP protects environment. Milestones are appropriate and sufficient. There may be some minor changes to the area, but they are just minor.

Mr. Tzekas - fiscal impacts:

  • We objected to the submission of Mr. McCormick's evidence. This stems from the agreement that the aggregate industry had with the Town during OPA 114. The CCRS objective was to have all aggregate matters be left to 161. Mr. Barnett has suggested the wording indicates that until the CCRS is completed—but JDCL interprets it as pending until the Board decision is done with the settlement.  At the 11th hour we have this issue presented. The CCC was looking for a social impact assessment and a fiscal assessment and that's what they got. I say the McCormick report should be discarded before the Board—and Mr. McCormick was just not credible. His compiled information was based on a Michigan study, which was based on the Ohio study. The author said in an email it wasn't much of a study. He maintains the study is not credible. Also almost all the land around Rockfort is within the 5 km radius and is already devalued. JDCL is not obligated to compensate for lost value.  Mr. McCormick had done a study for Dufferin showing the quarry would bring millions of dollars to the local economy. He didn't tell his client or Board about that.  McCormicks' evidence added fuel the fire for the residents, who quoted it.  This property was designated HPMARA since 1997. Maybe that devalued the area or maybe the campaign from the CCC has devalued the area.
  • Re a stand-alone social impact study:  OPA 161 settlement was an agreement everyone agreed to within the room and it was adopted. There were concerns including from JDCL about lack of clarity in what were the clear guidelines or reasonable guidelines and contrary to the ROP. The stand-alone social impact study part was deleted in the final adoption. JDCL maintains the individual experts look at the issues (like traffic or noise) under the provincial guidelines. He suggests no weight be given to this matter.
  • Looking at Dr Homenuk—he did create a separate social impact study. I remind the Board about the cross exam I gave Mr. Homenuk and suggest the Board be skeptical with the work he did. Why didn't he pick up the phone and talk to the JDCL consultants?  Also he starts his survey by saying he was working for the CCC and gives them at the door incorrect information about the number of trucks per day and the hours of operation on Saturday.
  • Looking at Ms. Pounder's evidence – it should be ignored, as there is an obvious lack of balance in her approach. If you look at the history of the NEC, extraction is allowed and is an objective of the Plan. Ms. Pounder comes to things with a certain mindset. She raised uncertainty with respect to the roads. The Region is the one that will go to NEC regarding a development permit not JDCL and the same with the off-site wells.
  • Looking at Planning—there were lots of opinions expressed. The polarization between planners was remarkable.  He thinks it has to do with the policy framework and the history that gives rise to it. For instance Mr. Dorfman, relied on McCormick’s study. When the case began things were further apart than they are now. But when the reports were being done the polarization began. The Board will have to decide who built their case on a better foundation. Mr. Parkin's is a better foundation.
  • Finally there is the issue of balance.  If it’s a situation of trying to balance the good against the bad—what is the good they are balancing against? If you are not looking at any positives, the balancing exercise is quite distorted.  For instance, Mr. Dorfman's approach to need—he doesn't think it's a relevant factor. When asked about this, he said he assumed it.  Mr. Tzekas thinks this leads you down the wrong path. Mr. Sorenson thought there was a fundamental incompatibility for extraction. We've been through the CCRS, the ROP and the OP, that would have been there throughout the process so I think he just got that wrong.
  • Both Mr. Dorfman and Mr. Sorenson think that if you are protecting the resource that's good enough—but I don't think that's good enough. It doesn't meet all of the requirements of the provincial policy.
  • Mr. Gary Murphy's evidence makes it pretty clear as to how he approaches his assignment. He came at it from a certain viewpoint and if you are tendering a comprehensive planning argument that's not good enough.
  • He thinks that Mr. Parkin's evidence and conclusions should be given more weight since it gives balance more holistically.
  • He submits you should weigh the Provincial interests higher than the Regional or Municipal interest.
    These issues that matter when they bought the property:
  • The site is outside the NEP and inside Cabinet's corners
  • The property was located in an area with a sub-watershed study done and the CBSES.
  • It was identified as HPMARA and on a haul route
  • Outside the greenland system.
  • No sensitive onsite features.
  • No regulated CVC features on site.
  • It is reasonable to have nuisance impacts but they are minor.
  • There is no statutory requirement for financial assurances but JDCL is still willing to provide security assurances right to the end of the rehabilitation period. This could be handled by issuing your order subject to a financial assurances agreement (takes six months) in a form that is either agreed to by the parties or to be resolved by this Board.
  • Respectfully suggest that there are very good reasons to grant the license.

(NOTE: Tomorrow, Wednesday, May 19th, the hearing will take place in the Caledon Community Complex in Room B.)