Jeffrey J. Wilker 416-868-3118 jwilker@thomsonrogers.com SENT BY Email and Overnight Courier August 1, 2014 Diane Schwier Aggregate Technical Specialist Ministry of Natural Resources 1 Stone Road West, 1 st Floor Guelph, Ontario N1G 4Y2 Dear Ms. Schwier: Craig Pit ARA Licence No. 12253 Proposed Major Site Plan Amendment St. Marys Cement Inc. (Canada) Part of Lots 4 and 5, Concession 1 EHS, Town of Mono, (Geographic Township of Mono), County of Dufferin We are solicitors for the Town of Mono ( Town ). Please accept this letter as the Town s objection to the request made by St. Marys Cement Inc. (Canada) ( the Applicant ) to the Ministry of Natural Resources ( MNR ) for a major site plan amendment to extract below the water table at the Craig Pit in the Town of Mono. The Craig Pit consists of two abutting land parcels, located on the Walker (northerly part) and the Murphy (southerly part) properties. The haul route crosses Hurontario Street at right angles and utilizes a haul route through the former Baker Pit to access Side Road 5. The planning approvals for and the licensing of the Craig Pit were completed in two stages and are subject to Licence No. 12253 which permits above water table extraction only and requires rehabilitation to prime agricultural usage. Town Council has passed the attached Resolution dated July 21, 2014 objecting to the proposed major site plan amendment. Supplemental to and in addition to the Council Resolution, the following is provided as reasons for the objection: 1. The original application, referred to as the Walker Pit (Part of Lot 5, Concession 1 EHS), was the subject of an Ontario Municipal Board ( OMB ) hearing in which SUITE 3100, 390 BAY STREET, TORONTO, ON, CANADA M5H 1W2 TF: 1-888-223-0448 T: 416-868-3100 F: 416-868-3134 thomsonrogers.com
-2- the Town, Niagara Escarpment Commission ( NEC ), Hockley Valley Community Association Inc., and Lockyer Brothers Limited were parties represented by Counsel. I represented the Town at the hearing. A copy of the 1994 OMB Decision/Order is attached for your consideration. It is our view that the many serious matters that were addressed at this hearing have not been addressed by the Applicant in the proposed major site plan amendment application. Amongst these are the following: The application dealt with by the OMB in 1994 was for a pit restricted in depth to being above the water table; Geotechnical concerns associated with slope stability along the Nottawasaga River Valley (Hockley Valley) were resolved, in part, through the restriction in depth of extraction to above the water table together with additional monitoring and reporting; Hydrogeological concerns related to impacts on wells and natural features were satisfied given that extraction was limited to above the water table; Since the pit was to be substantially rehabilitated to its previous agricultural capability, concerns related to removing prime agricultural lands from production were satisfactorily addressed; The Ministry of Agriculture and Food had no concerns with the application as the prime agricultural lands would be rehabilitated to agriculture. The Applicant has not addressed these matters. It is the Town s view that the Applicant must provide the following reports: a) a Geotechnical Study to address concerns related to slope stability as a result of below water extraction, and b) an Agricultural Justification Report to address why prime agricultural lands are not being returned to substantially the same area and restored to the same average soil capability for agriculture and how agricultural rehabilitation in remaining areas will be maximized. The Town has engaged the Town Engineers, R.J. Burnside & Associates Limited, to review the Hydrogeological Assessment for this proposal. A copy of their letter of hydrogeologic concerns dated July 25, 2014 is attached. 2. The Guiding Principles set out in Policy A.R. 2.00.03 of the MNR s Aggregate Resources Program Policies and Procedures Manual states that: Additional conditions may be attached to the licence or the site plan at the discretion of the Minister or the OMB, which are not part of the Prescribed
-3- Conditions. These conditions may be varied or rescinded and are the result of specific Natural Environment, Hydrogeological or Cultural Heritage reports, public or agency concerns, including the MNR, or conditions proposed by the applicant to address concerns/issues. Conditions resulting from an OMB hearing should only be modified or removed in rare instances, where the condition is not consistent with the purposes of the Act, nor practical or not enforceable. For ease of reference we have, as previously noted, provided the copy of the OMB Decision/Order. The question of the risk of slumping of the Nottawasaga River Valley (Hockley Valley) was a significant factor in the Town opposing the Walker Pit approval at the OMB. On this issue the Town was satisfied through the OMB Decision/Order which only permitted above water table extraction subject to a monitoring and reporting condition. This satisfaction resulted in the Town subsequently supporting Lockyer Brothers Limited at Divisional Court in opposing and obtaining a dismissal of the residents leave to appeal motion. The removal of the requirement to limit extraction to above the water table is a significant alteration to the OMB Decision/Order and raises substantial issues, including engaging the issue of the risk of slumping of the Nottawasaga River Valley (Hockley Valley) if the hydrogeological conditions are amended by permitting below water table extraction. It is our view that the proposed major site plan amendment has not been justified with respect to the range of issues set out in the 1994 OMB Decision/Order. 3. The southerly portion of the Craig Pit, (Part of Lot 4, Concession 1, EHS) is referred to as the Murphy property. The planning approvals for the Murphy property were set out in documents provided by the Applicant. OPA 31 and Zoning By-law 2004-74 are attached for your ease of reference. The Craig Pit is located on the watershed divide between the Credit and Nottawasaga Rivers and abuts the Orangeville reservoir, a provincially significant wetland. As such, these lands contain sensitive groundwater and surface water features and abut this provincially significant wetland. These are features enumerated in section 34 (1) 3.2 i. and ii. of the Planning Act which specifically grants the legislative authority to authorize the restriction of the usage of lands with such features. In these specific and unique circumstances the existing planning approvals prohibit below water table extraction. In particular, the Official Plan
-4- Amendment sets out at 12 (f) (vii) the following: Due to the environmental sensitivity of the area which includes the proximity to a provincially significant wetland, headwater area for two major rivers systems (Credit and Nottawasaga), location at the watershed divide of the two watersheds, extraction below the water table shall be prohibited. Section 2 (d) (2) of Zoning By-law 2004-74 states: Uses prohibited Extraction below the water table. Therefore, it remains critical to note that the existing planning approvals for the Murphy property in the Official Plan Amendment and in the Zoning By-law were agreed to on consent to prohibit below water table extraction. By so doing, the proponent was able to secure on consent concurrence from the Town and avoid further concerns from surrounding residents, in order to obtain permission to extract above the water table on the Murphy property. We note that the legal owner of the Murphy property remains Brian Murphy. The Town does not have a copy the Applicant s extraction agreement with Brian Murphy and requests that MNR provide a copy of same. As below the water table extraction is prohibited on the Murphy property pursuant to the agreed to existing and approved planning documents, Official Plan Amendment and Rezoning Applications are required to be filed with the Town so that the requisite public agency circulation and public planning process may occur providing for full and substantive review and comment, including openness and transparency. Both an Official Plan Amendment and Rezoning need to be approved prior to the proposed major site plan amendment being able to be approved. Neither an Official Plan Amendment Application nor a Rezoning Application have been filed with the Town to date. 4. The Applicant hosted a Public Information Session, as set out in the 4.2.1 of the Consultation and Notification Standards. Mr. Harrington, the Applicant s consultant began his presentation by informing the public that one of the main benefits of the proposed below water extraction at the Craig Pit involves the provision of flow to the Orangeville Reservoir under drought conditions. Mr. Harrington also informed the public in attendance at this meeting that the Credit Valley Conservation ( CVC ) not only supported the benefits of this approach, but
-5- initiated the application to extract underwater. It is the Town s view that this part of the presentation was misleading to the people in attendance at the Public Information Session. From a substantive perspective it appears that any perceived benefits are exaggerated; the benefit of creating the pond is not substantially different than the benefit that exists if the pond were not created. The Town s specific understanding is that both CVC and the Nottawasaga Valley Conservation Authority ( NVCA ) are continuing with their hydrogeological review. 5. It is the Town s view that the application has not been properly circulated to all relevant parties, in particular, the NEC, which was involved in the original 1994 OMB hearing. The Town s Deputy CAO/Director of Planning, Mr. Mark Early, discussed this concern with the MNR. The MNR advised that the requirement for circulation was the responsibility of the Applicant. In this regard, the Applicant should have circulated the NEC. We are of the opinion that the consultation and notification process associated with this specific application is flawed, is not open and transparent, and fundamentally fails to adhere to the principles of natural justice. 6. We also wish to bring to MNR s attention its failure to post the notice of proposed major site amendment on the Environmental Registry. This failure has the resultant impact to restrict public notification and consultation on this specific application. In correspondence with Mr. Early, the MNR had indicated that the registry notification was to be posted by June 29 th, 2014. At the time of writing this letter, it is our understanding that the EBR posting has not been made. The requirement to complete this posting is the sole responsibility of the MNR. 7. It is noted that the Town has not received updated Noise or Dust Assessments in support of the major site plan amendment application. It is the Town s position that these reports are required to support the proposed major site plan amendment given that: a) there are several receptors located in close proximity to the pit, b) noise guidelines, in particular NPC 300, have changed. NPC 300 now requires assessment a minimum of 4.5 m above ground for second storey windows. Further, with the consent application which, if approved, would separate the Murphy farmstead from the licensed pit lands, there will now be a requirement to assess the potential for noise impacts on the Murphy farmstead, which includes the dwelling. Please see item no. 12 for further discussion regarding the consent application. 8. The Town is concerned that the status of the haul route needs to be addressed. With the extension of the proposed pit operation, the haul road will need to be used to
-6- handle an additional 2.9 million tonnes of material. It is our view that a Traffic Impact Study is required to address the safety and maintenance of the haul road and to address any improvements required to the intersection with Side Road 5/Hockley Road. 9. In reviewing the draft Site Plans prepared by Harrington McAvan Ltd., we note that the Operations Plan permits the importation of inert fill to be used in rehabilitation of the pit. This note needs to be removed from the Site Plans, should the major site plan amendment be approved. 10. In reviewing the supporting documents for approval of the original permissions for the southerly portion of the Craig Pit, i.e. the Murphy farm portion, it is noted that the then Applicant submitted a Natural Environment Level 2 Report. This report was completed by ESG International Inc. The report, in Section 6, provides the following Technical Recommendation: No extraction should take place within 1.5 m above the water table. The proposed major site plan amendment entirely contradicts this recommendation. The Natural Environment Technical Report: Level 1 and 2 prepared by AWS Environment Consulting (June, 2014) makes no reference to this Report. 11. The Town is concerned with the status of progressive rehabilitation at the Craig Pit. In reviewing the current site conditions, it is the view of the Town that the licensee has not completed progressive rehabilitation over much of the site. The Applicant s consultant, Mr. Harrington, informed the public that licensed reserves will likely be depleted from the pit after this year. Yet, the pit has not been progressively rehabilitated back to agriculture as required by the Progressive Rehabilitation Plans and the provisions of the Provincial Greenbelt Plan. It is the responsibility of MNR to ensure that such rehabilitation is being carried out under the Aggregate Resources Act. The Town is of the view that if the Craig Pit was progressively rehabilitated as specified in the OMB Decision/Order and as required on the approved Site Plans for both the Walker and Murphy properties, then any proposal for an amendment to permit extraction below the water table would have been remote. 12. As referenced in item no. 7 above, the Applicant has filed with the Town an application for consent to join the Walker and part of Murphy property under one ownership with the result that the Murphy farmstead would be severed from the licensed property which is subject of the major site plan amendment proposal, together with a minor variance application relating to the Murphy farmstead. The
-7- Town has indicated several concerns with the consent/minor variance as it relates to the site plan, licensed boundary, and the Town s Official Plan and Zoning bylaw. The resolution of these matters will have an impact on the site plans submitted with this major site plan amendment proposal. A copy of Mr. Stovel s July 14, 2014 report on the consent/severance and minor variance applications is attached for your information. Pursuant to the Council resolution and the reasons set out above, the Town objects to the proposed major site plan amendment. It is necessary for additional technical studies to be carried out and it is also required that the Applicant commence the Planning Act process prior to any further consideration of the major site plan amendment being made. We trust that the foregoing is of satisfactory detail regarding the Town s objection. Should you require anything further please contact the undersigned. Additionally, please provide notice of any of the Ministry s deliberations together with any Ministry decision on the above noted major site plan amendment to the undersigned at jwilker@thomsonrogers.com and to Mark Early, the Town s Deputy CAO/Director of Planning at mark@townofmono.com. We thank you for your consideration of this correspondence and the attachments and would be pleased to discuss any of the foregoing with MNR as this matter is considered. Yours very truly, Jeffrey J. Wilker Jeffrey Wilker Law Professional Corporation JJW/jjw Mark Early, Deputy CAO/Director of Planning, Town of Mono Gord Feniak/Dwight Smikle, R.J. Burnside & Associates Ltd., Town Engineers Rob Stovel, Stovel & Associates, Consulting Planner Sonya Pritchard, CAO, County of Dufferin Ken Whitbread, Manager, Niagara Escarpment Commission Liam Marray/Kerry Mulchansingh, Credit Valley Conservation Tim Salkeld/Ryan Post, Nottawasaga Valley Conservation Authority Melanie Horton, Director of Lands and Resources, St. Marys Cement Inc.