Submission to the Standing Committee on General Government regarding the review the Aggregate Resources Act, May 16, 2012 Dear Members of the Standing Committee, On behalf of our members and member groups across the province, Ontario Nature respectfully submits the following comments and recommendations regarding the review the Aggregate Resources Act (ARA). This submission provides further detail and context to the verbal presentation made to the Committee by Ontario Nature s Executive Director, Caroline Schultz, on Monday May 14 th, 2012. We trust that this submission will inform your report to the House with respect to strengthening the Act. About Ontario Nature Ontario Nature is a charitable organization representing more than 30,000 members and supporters and 140 member groups across Ontario. For 81 years Ontario Nature has been protecting wild species and wild spaces through conservation, education and public engagement. Ontario Nature has a long history of working on issues related to aggregate extraction from landscape-scale land-use plans, notably the Niagara Escarpment Plan, the Oak Ridges Moraine Conservation Plan and the Greenbelt Plan, to opposing specific licence applications such as Dufferin Aggregates Milton Quarry expansion. For the past three and a half years, Ontario Nature has been working with representatives of the aggregate industry and other environmental organizations as members of the Aggregate Forum of Ontario (AFO). The AFO was formed to develop a voluntary program for environmental certification of aggregates to raise the environmental bar substantially above that currently prescribed in legislation. However, voluntary certification should not substitute for sound legislation and effective regulations. Indeed the AFO has acknowledged the limitations of voluntary certification for such issues as siting of operations and duration of licences. We are also currently working collaboratively with the aggregate industry, municipalities and other stakeholders to discuss and promote community-based approaches to planning for aggregate development as well as higher environmental standards for industry operators. 1
Introduction Ontario Nature recognizes the many vital functions that aggregates serve in our society. However, we also recognize the need to use this resource more sustainably from environmental, social and economic perspectives. An average of 175 million tonnes of aggregate is used for development and infrastructure projects in Ontario every year. Economically valuable deposits often occur in areas of rich natural heritage, such as the Niagara Escarpment, the Oak Ridges Moraine and the Carden Plain. Aggregate extraction is a major intense land use primarily concentrated in southern and eastern Ontario but increasingly in central and northern parts of the province. Aggregate extraction, while considered an interim land use by the province and industry, creates significant long-term environmental and ecological disturbance, including destruction of habitat through removal of vegetation and soil, alteration of hydrological regimes and drainage patterns, changes to the slope of the land and fragmentation of natural heritage systems that support wildlife and yield essential ecological goods and service. These are in addition to other community level concerns such as noise, dust, water quality and quantity, and truck traffic. The siting or expansion of pits and quarries is often the subject of considerable controversy at the municipal level. The government s current review of the ARA offers an important opportunity to improve the rules governing this industry so that communities have more involvement in planning decisions and so that negative environmental and social impacts are avoided or reduced. It is very important to understand that what is required is substantively more than a review of the Act itself. Many of the key issues are ones that need to be dealt in the Aggregate Resources Provincial Standards and in the Aggregate Resources Policy Manual. Below is a list of key issues and recommendations that we trust will be considered in the review of the ARA. 1. Need, Siting and Cumulative Impact Despite conflicts with other potential land uses or natural heritage values, municipalities cannot require that an aggregate project proponent provide a full and open justification of need for the resource as a criterion for project approval. The Provincial Policy Statement, 2005 states that demonstration of need for mineral aggregate resources, including any type of supply-demand analysis, shall not be required, notwithstanding the availability, designation, or licensing for extraction, of mineral aggregate resources locally or elsewhere. In addition, given the preference to extract aggregate resources close to market, most aggregate operations occur in southern Ontario, where demand is highest and producers can keep transportation costs to a minimum. This is particularly worrisome since aggregate operations often occur in clusters, where the resources are located, creating the potential for cumulative negative impacts. Such cumulative impacts are not adequately dealt with under the ARA, which currently does not require cumulative impact assessments. Of particular 2
concern are impacts on hydrological systems where aggregate extraction occurs below the water table. A major concern is the use of pumping in perpetuity as an adaptive management plan. This is a burden for which a company cannot be properly accountable and ultimately rests on the shoulders of society. It is not acceptable. Recommendation 1: Require that new quarry proposals demonstrate the need for additional aggregate resource extraction in meeting the demands of the Ontario market. Recommendation 2: Require a cumulative impact assessment as part of the approvals process. Recommendation 3: Prohibit aggregate extraction below the water table without a full Environmental Assessment of the potential impacts on the hydrological system. Recommendation 4: Prohibit extraction where depletion of ground and surface waters can only be mitigated through pumping forever. 2. Rehabilitation Progressive rehabilitation is required under the current ARA, however, many of the rehabilitation plans were prepared many years ago and do not necessarily reflect current best practices. Rehabilitation efforts also suffer from a lack of coordination among licences, which is a particular concern where there are clusters of pits. The ARA requires operators to consider the natural landscape of the surrounding areas, but this does not take into account the fact that the natural landscape is being altered by multiple aggregate operations. There are thousands of abandoned pits and quarries in the province, and currently operators are charged half a cent per tonne to support their rehabilitation. This levy enables the rehabilitation of only about 45 sites per year. Increasing the levy would ensure that more sites are rehabilitated more quickly. Recommendation 5: An effective and efficient site plan review process should be in place for sites that are currently in operation (some for decades) to determine if current rehabilitation plans are consistent with landscape-scale objectives and to facilitate amendments that enhance environmental protection and conservation targets. Recommendation 6: Require broader scale rehabilitation plans for licences that are in close proximity to other licences. Recommendation 7: Increase the levy charged to operators to enable rehabilitation of more abandoned pits and quarries each year. 3
3. Licence Duration In the Provincial Policy Statement, aggregate resource extraction is referred to as an interim land use, a term which underplays the negative impacts of extraction and misleadingly implies that the land will be returned to its former use. In fact, pits are seldom returned to their former state, and quarries result in permanent and significant changes to hydrological and natural systems. A key issue for the public and other key stakeholders is the duration of aggregate licences. There is no set term for an aggregate licence, which means that an operator can keep a site open indefinitely before moving to final rehabilitation and closure of the operation. Many of the current aggregate licences in the province have been active for more than 40 or 50 years. For example, in Uxbridge, 29 of the 31 active licences have been active for more than 30 years and 22 of them for at least 39 years. Progressive rehabilitation is required under the ARA, but there is concern over the length of time it takes to rehabilitate relative to the rate of extraction. There is also concern that the rehabilitation plans for these pits are not consistent with landscape-scale objectives. According to the Environmental Commissioner of Ontario, between 1992 and 2000 the average number of hectares disturbed by aggregate operations was more than double the area rehabilitated. Communities, municipalities and other stakeholders want greater clarity and certainty about the length of time a particular operation may be in existence. It is essential to know when a site will undergo final rehabilitation in order to plan for its use after a licence is surrendered. For example a site may be destined to become an important future element of a municipality s natural heritage system or may be tied to future economic development as a recreation feature. Understanding that demand and type of material are key factors that determine how quickly or sporadically a particular site is mined, the current completely open-ended nature of licences is unacceptable. Recommendation 8: Expedite rehabilitation by requiring the incorporation of a Maximum Allowable Disturbed Area into site plans, as is currently done under the Greenbelt Plan. Recommendation 9: Set a fixed term for licenses so that long-term land use planning can proceed in an orderly fashion and rehabilitation can proceed in a timely way. 4. Enforcement and Compliance One of the public s key concerns regarding the aggregate industry is compliance with current requirements and the Ministry of Natural Resources (MNR) s capacity for enforcement. The current system relies significantly on self-compliance through annual Self Assessment Reports. MNR reviews these reports and then selects some sites for inspection each year. There are currently over 3700 licences in Ontario and there are only approximately 30 aggregate inspectors. The MNR has a target of reaching 20 4
percent of the sites per year, yet it appears that this target is seldom if ever met. According to the Environmental Commissioner of Ontario, the MNR has been inspecting only 10 to 14 percent of sites between 2002 and 2006. While sites of previous non-compliance or significant disturbance are given priority, MNR rarely lays charges for failing to rehabilitate, creating little incentive for aggregate operators to undertake rehabilitation efforts. There are simply too few inspectors to adequately monitor and enforce compliance. Recommendation 10: Increase the levies associated with aggregate extraction to hire more staff to enforce the ARA and its regulations. Currently the levy is at 11.5 cents per tonne of aggregate produced (3.5 cents go to the crown, 6 cents go to the local municipality, 1.5 cents go to the county or upper-tier municipality and half a cent goes to the abandoned pits and quarries fund). This is in stark contrast to the levy charged in the U.K. which is $3.23 per tonne. The increased levy should be sufficient to ensure that the MNR can reach its 20 percent/year target to encourage better compliance. 5. Public and Municipal Participation and Communication Aggregate-producing municipalities bear the brunt of providing the materials society needs but municipalities and communities have little say in deciding where and how aggregate extraction will occur. Some of the top aggregate-producing municipalities are rural ones with few resources to fight a licence application at an OMB hearing. The current approvals process for aggregate projects impedes adequate public consultation and involvement in decisions. It is a proponent-driven process whereby the proponent privately develops an application, consults with the MNR and then submits the application before it becomes public. Applications, with the supporting reports, are hundreds of pages long, and there is only a 45 day window for people to react to a licence application and submit their objections. To expect citizens to be able to find out about the application, read and understand it, and adequately respond within 45 days is unreasonable. Further, the current requirement is to notify residents only within 120 metres of the property. This range is inadequate when compared to the scope of the potential impact on the community. Recommendation 11: Require public participation opportunities before submission of the application to MNR to allow issues to be identified and potentially resolved. Recommendation 12: Provide municipalities with a meaningful and informed decision-making role in the licence application process. Recommendation 13: Extend the 45 day window for public participation to allow sufficient time for citizens to properly understand the application and its implications and to formulate a response. 5
Recommendation 14: Extend the 120 metre area within which residents are notified of the application to reflect the scope of the potential impacts of the proposed aggregate operation. 6. Recycling To reduce the negative impacts of aggregate extraction, including costly appeals to the Ontario Municipal Board, pressure on accessing virgin aggregate should be reduced by promoting recycling and removing barriers to recycled products through revisions to the ARA. The current rate of recycling in Ontario is only 13 million tonnes per year, which is 7% of the total consumption. Although the Ministry of Transportation and some municipalities readily use recycled materials, many others do not. Another barrier is the reluctance of some municipalities to potentially extend the life of pits by allowing recycling operations. A challenge for municipalities hosting recycling facilities is that there will be an ongoing need for their roads to sustain aggregate truck traffic while their revenue from the aggregate levy shrinks as the amount of virgin aggregate produced declines. Recommendation 15: Broaden the purpose of the ARA to include conservation of Ontario s aggregate resources through recycling and reuse of aggregates in Ontario. Recommendation 16: Increase levies on construction waste to encourage recycling. Recommendation 17: Permit recycling in active licences to allow for mixing of materials in pits. Recommendation 18: Identify the mechanism that will ensure that municipalities hosting aggregate recycling facilities receive the revenue necessary to maintain the infrastructure required to support trucks transporting recycled material. 7. Provincial and Regional Aggregate Extraction Strategies A comprehensive provincial aggregate conservation and rehabilitation strategy is needed to promote the substitution, reduction, reuse and recycling of aggregate resources, as well as the improved rehabilitation of sites. The strategy should include a detailed analysis of future supply and demand in the context of environmental land use planning and growth management initiatives underway in the province. In addition, the strategy should identify priority areas for resource extraction that do not conflict with other land use considerations, such as natural heritage and agriculture, while maintaining the resource as close to market as possible. Further, the Growth Plan for the Greater Golden Horseshoe (Growth Plan) states that the Ministers of Public Infrastructure Renewal and Natural Resources are to work with municipalities, producers of mineral aggregate resources and other stakeholders through sub-area assessment to develop a long term strategy on aggregate management and a coordinated approach to rehabilitation. Thus far no municipalities 6
have formally seized the opportunity to site aggregate operations and develop comprehensive rehabilitation plans as outlined in the Growth Plan. Regional municipalities have been required to identify aggregate resources in their community but as of yet there does not seem to be an overall strategy. Recommendation 19: Require the development of a comprehensive provincial aggregate conservation and rehabilitation strategy to promote the substitution, reduction, reuse and recycling of aggregate resources, as well as the improved rehabilitation of sites. Recommendation 20: Require the development of a regional aggregate extraction strategy for new licences in the Greater Golden Horseshoe, as outlined in the Growth Plan, to allow municipalities to better integrate aggregate operations and rehabilitation plans into their community plans, to conserve aggregate supply for future use and to reduce the potential for conflict and costly Ontario Municipal Board hearings. 8. Importation of Commercial Fill There is growing public alarm about the importation of commercial fill into depleted aggregate sites, especially regarding the adequacy of government oversight and testing to prevent the possible contamination of sites and water sources from contaminated fill. The licensing of an aggregate pit under the ARA results in a permanent landscape change. The holes, even if well rehabilitated, invite subsequent use (i.e. commercial fill) which may pose a serious risk to public health and to natural systems. Recommendation 21: Ensure that the ARA dovetails with other legislation to ensure that depleted pits are put to the highest and best use based on environmental and public health standards. In closing, I would like to thank the government for this opportunity to provide information and recommendations to inform the review of the ARA. I trust that the Standing Committee on General Government will take these comments into account. Should you require clarification or further information, please do not hesitate to contact me at (416) 444-8419 ext. 237 or at carolines@ontarionature.org. Yours truly, Caroline Schultz Executive Director 7