Office of Consolidated Hearings

Bureau de jonction des audiences

ISSUE DATE: August 26, 2016 CASE NO.: 15-137

IN THE MATTER OF AN UNDERTAKING UNDER section 3(1) of the Consolidated Hearings Act, R.S.O. 1990, c. C.29, as amended

Proponent: Dufferin Aggregates, a division of CRH Canada Group Inc. Subject of request for hearing: Various instruments and undertakings required for the extension of Acton Quarry Property Address/Description: Part of Lots 19, 20, 21, 22 and 24, Concession 3 and Part of Lots 20, 21 and 22, Concession 4 Municipality: Town of Halton Hills Upper Tier: Region of Halton OCH Case No.: 15-137 OCH Case Name: Re Dufferin Aggregates

Heard: June 21 and 22, 2016 in Halton Hills, Ontario

APPEARANCES:

Parties Dufferin Aggregates, a division of CRH Canada Group Inc. Counsel J. Kahn R. Amarnath

Parties Town of Halton Hills Counsel D. Germain

Parties Regional Municipality of Halton Counsel D. Germain

Parties Niagara Escarpment Commission Counsel J. Thompson

INTERIM DECISION DELIVERED BY SUSAN DE AVELLAR SCHILLER

INTRODUCTION

1This was a hearing before the Joint Board (“Board”), convened under the Consolidated Hearings Act (“CHA”), R.S.O. 1990, c. C.29, to deal with certain instruments and undertakings by Dufferin Aggregates, a division of CRH Canada Group Inc. (“Dufferin”) required for the proposed extension of the existing Acton Quarry, as follows:

• Town of Halton Hills Zoning By-Law 2015-0033
• Halton Region Official Plan Amendment No. 44 (Halton ROPA No. 44)
• Amendment to the Town of Halton Hills Official Plan pursuant to the Planning Act
• Amendment to Niagara Escarpment Plan pursuant to the Niagara Escarpment Planning and Development Act
• Niagara Escarpment Development Permit pursuant to the Niagara Escarpment Planning and Development Act
• Licence to permit the extraction of aggregate pursuant to the Aggregate Resources Act
• Environmental compliance approval (sewage) pursuant to the Environmental Protection Act
• Permit to take water pursuant to the Ontario Water Resources Act

2As a result of extensive review, discussion and consultation, amendments were made to the proposal and the implementing instruments. Public agency requests for modifications, conditions and, in some cases, agreements that go above and beyond statutory requirements eventually resulted in matters coming to the Board on consent of all parties.

3With a strong emphasis on the protection and enhancement of natural heritage features, extensive monitoring and mitigation requirements and ongoing co-operation with public agencies, the result is that a high bar has been set that demonstrates the ability to balance competing needs and preferences in the public interest and for public betterment.

4At the close of the hearing, the Board provided a brief interim decision approving the proposed quarry extension with written reasons to follow. The Board also indicated that its final decision would be withheld for 90 days, as set out below. These are the Board’s written reasons.

Location

5Both the existing quarry and the proposed quarry extension are located in a rural area characterized by rolling topography and extensive natural heritage features.

6The existing quarry is located on both sides of 22nd Sideroad in the Town of Halton Hills (“Town”), northwest of the community of Georgetown and southeast of the community of Acton. The existing quarry is between 4th Line to the east and Regional Road 25 (“RR 25”) to the west. RR 25 is also known as Highway 25.

7Regional Road 3 (“RR 3”), also known as Trafalgar Road, is east of 4th Line. RR 22 and RR 3 are both part of the haul route.

8Part of the existing quarry, along with the processing area, is within the Niagara Escarpment Plan (“NEP”) area. Part of the existing quarry is outside the NEP area but is within the Greenbelt Plan (“GBP”) area.

9Similarly, part of the proposed extension is within the NEP area and part is within the GBP area.

10Surrounding land uses within 500 metres (“m”) of the proposed quarry extension include, in addition to the existing quarry, various agricultural operations, natural heritage features, five rural residential uses that front on to RR 25 and one commercial use.

11Within 1 kilometre (“km”) of the proposed quarry extension are several additional rural residences, additional agricultural operations, rural commercial uses, the community of Acton and three licenced aggregate extraction sites (sand and gravel pits) not operated by Dufferin.

Public Agency Involvement

12Ministry of Natural Resources and Forestry (“MNRF”), which had objected initially to the application for the quarry extension, was satisfied with certain modifications and withdrew its objection prior to the commencement of these proceedings.

13Ministry of the Environment and Climate Change (“MOECC”) advised the Board at a previous appearance that the MOECC interest was confined to the Permit to take Water (“PTTW”) and the Environmental Compliance Approval (Sewage) (“ECA”).

14The MOECC usual procedure is to hold final analysis of PTTW and ECA applications until the proposed use is approved. The Board understands that the purpose of this practice is to be certain that any permits or approvals MOECC may issue are tied to a proposal that will be able to proceed.

15In its Order issued May 12, 2016, on consent of all parties and in accordance with Minutes of Settlement between Dufferin and MOECC, the Board deferred consideration of the PTTW and ECA to MOECC, pursuant to s. 5(3) of the CHA. The purpose for the deferral was to ensure that all parties, including MOECC, would have the benefit of the Board’s findings.

16The site is divided by the boundary between two watersheds. Two conservation authorities were involved in reviewing the proposed extension: Credit Valley Conservation (“CVC”) and Conservation Halton (“CH”). The Board was advised that neither agency had any outstanding concern and neither agency appeared in these proceedings.

17Pre-application consultations with the Niagara Escarpment Commission (“NEC”) and other public agencies began in 2006.

18The applications for this quarry extension were made in 2009. Since that time the proposed extension has been the subject of extensive study, peer reviews and public meetings and consultations. All information was made available to the public in support of an open, transparent and inclusive process.

19A Joint Agency Review Team (“JART”) was established with staff from the NEC, MNRF, the Regional Municipality of Halton (“Region”), the Town, CVC and CH.

20JART retained an aggregate advisor and peer review consultants for water resources, natural environment, blasting, air quality, noise, cultural heritage and traffic.

21MOECC and the Ministry of Municipal Affairs and Housing attended JART meetings in an advisory capacity.

22Public agencies that appeared at this hearing of the merits are the Town, the Region and the NEC. All of these public agencies appeared in support of the proposed quarry extension. No public agency appeared in opposition.

Participants

23Seven interests sought and received participant status at the first appearance. They are:

a. Leslie Summerfield b. Chuck Snow c. Mike Mandarino d. Baldev Gill e. Rakesh Choudhary f. Stephen Lister g. Protect Our Water and Environmental Resources Inc. (“P.O.W.E.R.”), a non-profit group represented by Doris Treleaven.

24All participants except Mr. Choudhary filed participant statements.

25Mr. Choudhary did not appear at the hearing of the merits and did not address the Board.

26Messrs. Gill and Mandarino did not appear at the hearing of the merits and did not address the Board.

27Mr. Snow attended part of the first morning of the hearing and did not return. Mr. Snow did not address the Board.

28Ms. Treleaven for POWER and Messrs. Summerfield and Lister filed participant statements, attended the hearing of the merits and addressed the Board. All three participants raised issues related to water. Mr. Summerfield also raised the issue of blasting and its impact on his residence. The Board deals more fully with these issues in the sections below.

Expert Witnesses

29The Board also heard from five witnesses, qualified to give the Board independent expert opinion evidence.

30Brian Zeman, qualified for evidence in land use planning and certified for the preparation of site plans for aggregate extraction licences, was called by Dufferin.

31Mr. Zeman testified regarding the lengthy planning and public consultation process, the details of the licence application and the site plans, and the details of the legal agreements with the public agencies except for the Niagara Escarpment Development Permit Agreement. He provided a full planning analysis of the instruments before the Board.

32Mr. Zeman’s evidence was unchallenged.

33Daniel Corkery, qualified for evidence on blasting, was called by Dufferin.

34Mr. Corkery reviewed in detail the technical restrictions and requirements for blasting.

35Mr. Summerfield testified about his concerns with blasting in years past but did not contradict Mr. Corkery’s evidence.

36Richard Murphy, qualified for evidence in hydrology and hydrogeology, was called by Dufferin.

37Mr. Murphy provided a detailed history of hydrological investigations associated with concerns regarding the impact of quarrying on water resources. He also reviewed in detail the steps to be taken in the future to protect and enhance water resources with the quarry extension.

38Only Mr. Lister remained unsatisfied with the conclusions of this evidence but Mr. Lister did not present the Board with any expert or technical evidence to challenge that of Mr. Murphy.

39Curt Benson, qualified for evidence in land use planning, was called by the Region.

40Mr. Benson reviewed in detail the Region’s proposed modifications to the Town Official Plan Amendment 23 (“OPA 23”). The proposed modifications were accepted by the Town and by Dufferin.

41Mr. Benson’s evidence focused on the Region’s Natural Heritage System and the modifications to shift OPA 23 from an emphasis on individual natural features to a natural heritage system approach to the protection and enhancement of natural heritage. Mr. Benson’s evidence was unchallenged.

42Nancy Mott, qualified for evidence in land use planning, was called by the NEC.

43Ms. Mott focused on the importance of the objectives of the NEP and the emphasis it gives to natural heritage. She reviewed the extensive public process and public consultations, emphasizing the open, accessible and transparent process of review and consideration of the Dufferin applications. Ms. Mott reviewed in detail the proposed NEP Amendment, the Development Permit with conditions, and the draft Development Permit Agreement between the NEC and Dufferin. Ms. Mott’s evidence was unchallenged.

ISSUES, ANALYSIS AND FINDINGS

44The Board turns now to an analysis of the planning instruments and the licence application. To do so, the Board has considered these instruments through several lenses, each setting out various policies and requirements.

45The Aggregate Resources Act, R.S.O. 1990, c. A. 8, (“ARA”) s. 12(1) sets out a number of matters to be considered when determining if a licence should be issued or refused. They include consideration of the effects of the proposed quarry on the environment, nearby communities, ground and surface water resources, and agricultural resources. They also include consideration of planning and land use permissions, haul routes, comments from the host municipality, the suitability of progressive and final rehabilitation and the quantity and quality of the aggregate on the site.

46The Planning Act, R.S.O. 1990, c. P. 13, (“PA”) has a number of requirements for analysis and consideration.

47The PA requires decisions to have regard for matters of provincial interest as set out in s. 2. Included in this list is the protection of ecological systems, including natural areas, features and functions, the protection of agricultural resources, the conservation and management of natural resources and the mineral resource base, the conservation of features of significant cultural or archeological interest and the supply, efficient use and conservation of water.

48At s. 3(5), the PA requires that decisions be consistent with the Provincial Policy Statement. Since these instruments were initiated prior to the issuance of the 2014 Provincial Policy Statement (“2014 PPS”), these instruments have been analyzed for consistency with both the 2005 Provincial Policy Statement (“2005 PPS”) and the 2014 PPS. Both the 2005 PPS and the 2014 PPS emphasize, among other matters, the importance of protecting natural heritage, cultural heritage, agricultural resources, water resources and mineral aggregate resources.

49Section 3(5) of the PA also requires that decisions conform to provincial plans or not conflict with them. As noted earlier, some of the lands within the proposed quarry extension are in the GBP area and some of the lands are in the NEP area. The test for the GBP is conformity; the test for the NEP is that the proposed instrument does not conflict with the NEP.

50Many of the objectives and requirements of the NEP and the GBP are similar to the matters identified above in the ARA, the matters of provincial interest identified in the PA and the provincial policies set out in the 2005 PPS and 2014 PPS. Altogether, there is a clear continuum of provincial thinking on the matters to be considered and the importance that is attached to them.

51Finally, the PA requires regard for the decisions of the municipal council and materials before council as set out in s. 2.1(a) and (b).

52The GBP designates the proposed quarry extension lands within its area as Protected Countryside. This designation permits aggregate extraction with certain restrictions and requirements regarding natural heritage and water resources.

53The NEP designates the proposed quarry extension lands within its area as Escarpment Rural Area. NEP amendments to re-designate lands within the Escarpment Rural Area to Mineral Resource Extraction Area may be approved, subject to the relevant policies and Development Criteria in the NEP.

54In addition to re-designating part of the Dufferin lands Mineral Resource Extraction Area for the quarry extension, the NEP amendment also re-designates some of the lands Escarpment Natural Area and some of the lands Escarpment Protection Area.

Licence and Extraction Area Size

55Dufferin has acquired approximately 302 hectares (“ha”) both north and south of the existing quarry. There will be no extraction on approximately 84% of these lands.

56The initial proposal was larger in certain respects than what has been agreed to by all parties and placed before the Board. Dufferin has reduced the proposed licence area from 124.4 ha to 65.6 ha. The extraction area has been reduced from 99 ha to 49.3 ha.

57The lands that are not proposed for extraction are to be protected and improved for agricultural uses, monitoring, and natural heritage designed to include environmental mitigation and ecological enhancement.

Use of Processing Equipment

58The proposed extension is designed to use the processing area of the existing quarry. The design of the processing area of the existing quarry meets MOECC Noise Guidelines and operates in accordance with an existing ECA. The required infrastructure is built and no changes are either required or proposed to the processing area in order to process aggregate from the proposed extension.

Hours of Operation

59The hours of operation for drilling, extraction, operation of the portable plant and shipping on RR 25 and on 4th Line are the same as the hours of operation of the existing quarry.

Haul Route and Traffic Impacts

60The proposed extension does not alter the currently permitted maximum volume of aggregate that may be shipped annually. The proposed extension simply alters the specific area from which the aggregate may be taken within the combined existing quarry and proposed quarry extension. As such, the impact of truck traffic on the surrounding community remains the same.

61The approved haul route for the existing quarry will be used except that, at the request of the Town, a modification has been made to keep trucks off Maple Avenue in the community of Georgetown except for local deliveries. Maple Avenue is the eastern extension of 17th Sideroad, east of RR 3.

Cultural Heritage

62Cultural heritage was studied extensively on the proposed quarry extension lands.

63A cultural landscape study did not identify any significant cultural heritage landscapes.

64A built heritage assessment found that barns and outbuildings on the quarry extension lands were not significant either due to the age of the structures or the extensive alterations that had been made.

65A Stage 3 archeological investigation was warranted on part of the quarry extension lands but found no evidence of subsurface features or archeological remains.

66A Stage 4 archeological investigation was undertaken on another part of the quarry extension lands. Several 19th century artifacts were found. The site was excavated and the artifacts removed and documented in accordance with provincial requirements.

Agricultural Lands

67The majority of the proposed extraction area is cleared land used for agriculture.

68There are no specialty crop lands on the site. The lands are predominantly Class 2, with some limitations, and Class 6. The lands do not meet the definition of Prime Agricultural Area in the 2005 Provincial Policy Statement (“2005 PPS”), the 2014 Provincial Policy Statement (“2014 PPS”) or the Region Official Plan.

69Since the lands are not in a Prime Agricultural Area, there is no requirement to rehabilitate the lands for agricultural purposes. Rehabilitation has been designed for natural heritage enhancement, open space and recreational uses.

70Ontario Ministry of Agriculture, Food and Rural Affairs had no objection to any of the planning instruments to permit the proposed quarry extension and its extraction area.

Noise

71Mr. Gill expressed concern about noise in the participant statement he filed.

72A noise assessment was undertaken and peer reviewed on behalf of the public agencies. As a result, a number of noise controls have been specified in the site plans for the quarry extension. The controls have been designed to ensure that the operations of the quarry extension will meet MOECC noise guidelines for sensitive receptors. Monitoring, notification of noise in excess of MOECC requirements at sensitive receptors and notification of corrective action to MNRF, MOECC, the Region, the Town and the NEC are all required.

Blasting

73Mr. Summerfield expressed concerns about the impact of blasting on his residence. His concern focused particularly on vibrations. He acknowledged in his oral testimony that he has not noticed as much vibration in the past few years and that, when he was more aware of the vibrations as a problem, they tended to last for 2 – 3 seconds at a time.

74Mr. Mandarino had also expressed some concerns about blasting in the participant statement that he filed.

75A blasting impact assessment was undertaken for the quarry extension and the report was peer reviewed for the agencies. Specific conditions have been included on the licence site plans and are designed to have the quarry operation meet the MOECC blasting guidelines in NPC 119.

76All blasts will be monitored for ground vibrations and blast overpressure. In the event that the monitoring shows that the blasting guidelines have been exceeded at a sensitive receptor, the same notifications will be made to the public agencies as set out above for noise.

Air Quality

77Mr. Gill expressed concern about air quality in the participant statement he filed.

78An air quality assessment was undertaken, peer reviewed on behalf of the public agencies and resulted in recommended controls and best practices added to the site plans to ensure that the operation meets MOECC air quality limits set out in Ontario Regulation 419/05.

79Monitoring and notifications to the public agencies, similar to that provided for in matters of noise and blasting, are also required.

Visual Impacts and Screening

80A combination of acoustic and visual berms that are vegetated, along with base area tree and shrub planting, will enable the operation to minimize visual impacts on the surrounding areas.

Natural Heritage

81There is a high degree of overlap between the locations of natural heritage features and the locations of the resource to be extracted. The quarry extension lands are predominantly already cleared agricultural fields but some natural heritage features remain.

82MNRF has reviewed the site plans and is satisfied that the 18.7 ha of natural features to be removed are either replaced on nearby lands or are otherwise very small and not provincially significant. Where the natural feature involves the habitat of threatened or endangered species, MNRF is satisfied with the removal and replacement and has, or indicated that it will, issue the necessary permits.

83Barn Swallow habitat and Eastern Meadowlark habitat to be removed will be replaced on land restored as grassland and include an appropriate new structure.

84There is some Jefferson Salamander habitat in a part of the quarry extension.

85This habitat has been delineated in accordance with provincial statute and regulation but has not been identified as suitable for breeding, foraging or overwintering. MNRF is satisfied with the removal of 13.2 ha of this habitat and its replacement with 14.5 ha of woodland, 11.4 ha of managed thicket and 6.3 ha of managed forest.

86Provincially Significant Wetlands are in the general area but none are within the quarry extension lands. There some small wetlands with limited standing water and very restricted hydroperiods which are too short for amphibian breeding. These very small areas will be removed in accordance with policies that call for net ecological gain. The proposed ecological enhancement is discussed below.

87One phase of the quarry extension includes 5.6 ha of significant woodland that is part of a much larger woodland that extends over 3,500 ha. The 5.6 ha to be removed contains no uncommon or rare features, no significant wildlife habitat and no interior forest habitat. It has not been identified as suitable for breeding, forage or overwintering habitat under provincial statute. The removal of what amounts to 0.16% of the significant woodland will not have a negative impact on that woodland and will be replaced with 26.4 ha of new woodland and 15.5 ha of woodland that will be managed.

88An off-site ecological enhancement plan will be implemented prior to and during extraction. It is designed to enhance both the features and functions of the Regional Natural Heritage System. The plan includes woodland creation, woodland management plans, amphibian pool creation, wetland enhancements, turtle nesting sites, pit and mound topography, thicket management and grassland creation.

89The proposed rehabilitation plan for the quarry extension lands follows a similar pattern with a focus on natural heritage features.

Water Resources

90Extraction from the existing quarry involves de-watering below the water table which results in a lowering of surrounding groundwater levels in the Amabel aquifer. Water discharge from the existing quarry assists in mitigating such impacts and helps to support wetlands, creek tributary flows and groundwater levels.

91The impact on, and behavior of, water resources as a result of the operation of the existing quarry has been studied extensively for several years and are now well understood.

92Even without mitigation, the primary impact is within 200 m of the existing quarry with influences of less than 1 m at the 600 m distance.

93The Amabel aquifer is an important source of groundwater. This aquifer thins and is eventually truncated at the Niagara Escarpment.

94The much thinner aquifer with southwesterly dipping strata and some interception of surface water features results in more limited groundwater flow southeast, particularly further south and east on 4th Line. As a result, the effects of the groundwater drawdown from the Amabel aquifer are more limited to the southeast and there are no direct drawdown effects below the Niagara Escarpment. In this area, reliable water supply wells are generally in deeper bedrock formations rather than in the Amabel aquifer.

95Comprehensive and extensive monitoring and mitigation measures have been identified to protect both water resources and related ecological features. The mitigation measures have been designed to integrate the quarry extension with the existing quarry. The result will mitigate some of the effects of the existing quarry as well as minimize the potential for negative effects from the quarry extension.

96As noted earlier, several participants raised concerns about water in the participant statements that were filed. Mr. Murphy reviewed these concerns and provided evidence in response even though several of these participants did not appear at the hearing and did not address the Board. His evidence regarding the concerns of these participants was not challenged.

Baldev Gill

97Mr. Gill’s property is on Highway 25 (which is also RR 25).

98Mr. Gill’s well is approximately 650 m from the extraction limit of the quarry extension and is over a part of the Amabel aquifer that has approximately 35 m of saturated thickness.

99According to provincial well records, the available water column is approximately 28 m. With the proposed mitigation, there will be little or no drawdown extending to Mr. Gill’s property and no impact on water quantity or quality in Mr. Gill’s well. Mr. Gill did not attend or address the Board.

Chuck Snow

100Mr. Snow’s property is located on RR 25, well to the south of the existing and proposed quarry and in an area where the saturated thickness of the Amabel aquifer is approximately 30 m. His well is located approximately 1,850 m from the extraction limit of the quarry extension.

101In Mr. Murphy’s opinion, the quarry extension will result in no measurable drawdown and will not affect the water quantity or the water quality of the water supply to Mr. Snow.

102Extensive well monitoring will be undertaken as part of the requirements for the quarry extension between the quarry extension and Mr. Snow’s property. The monitoring includes private wells in addition to monitoring wells located in the road allowance on RR 25 north of Mr. Snow’s property.

103Mr. Snow’s property is well beyond the limits of anticipated possible impacts, and therefore also beyond the limits of the well monitoring locations required by the public authorities. Still, the Adaptive Management Plan includes procedures to address, promptly and proactively, any unanticipated influences and those procedures apply to and protect Mr. Snow’s water supply as well. Mr. Snow did not address the Board.

Mike Mandarino

104Mr. Mandarino’s property on 4th Line was owned by another family from 1960 to 2012. The well on the property is located 600 m from the closest extraction limit of the existing quarry.

105A hydrological assessment of properties undertaken along 4th Line did not include the Mandarino property, although all property owners along 4th Line were invited to participate.

106A letter from the Ministry of Environment, as it then was, to the former owners of Mr. Mandarino’s property noted that the well on the property was an open hole well located in Cabot Head shale below the Amabel aquifer.

107Well sedimentation was noted as common in wells located in such shale, with an anticipated lower yield than wells in the Amabel aquifer. Regular well maintenance to deal with sedimentation is a standard procedure that is expected to be undertaken by property owners with wells in shale.

108A well south of Mr. Mandarino’s property, also located in shale, required restoration work to remove 0.45 m of sediment from the bottom of the well This well restoration significantly improved water quality and yield.

109Mr. Mandarino did not attend the hearing and did not address the Board.

Rakesh Choudhary

110Mr. Choudhary’s property is also on Highway 25. Since Mr. Choudhary did not file a participant statement, there was nothing to which Mr. Murphy could respond. As noted above, Mr. Choudhary did not attend and did not address the Board.

Leslie Summerfield

111Mr. Summerfield lives in the community of Acton. He expressed concern in his participant statement about the impact on municipal wells. Mr. Summerfield attended the entire hearing. Following the evidence of Mr. Murphy, Mr. Summerfield advised the Board that he no longer had any concerns regarding the municipal wells.

112Water supplies for the community of Georgetown and for the community of Acton are the closest municipal water supplies to the existing quarry and the quarry extension.

113Extensive studies have been undertaken by the Region and as part of source water protection analyses. These studies have concluded that the municipal water supplies for these two communities do not rely on groundwater from the vicinity of the existing quarry or the quarry extension. In addition, their respective Well Head Protection Areas do not include any part of the existing quarry, the quarry extension or areas that are within the current or anticipated zone of influence.

Stephen Lister

114Mr. Lister lives on 4th Line, southeast of the existing quarry and the quarry extension. He filed a participant statement, attended the hearing and addressed the Board.

115Mr. Lister’s well is approximately 1,800 m from the existing quarry and it is 1,850 m from the extraction limit of the quarry extension. There is an extensive network of monitoring wells and surface water monitoring stations between the existing quarry and Mr. Lister’s well. Mr. Murphy testified that the data from these wells and monitoring stations does not show any lowering of the groundwater level or reduction of surface water flow that would support the contention that a drawdown impact extends out to the Lister property.

116Mr. Lister obtains water from a different geologic formation than the Amabel aquifer. The Amabel aquifer is separated from this formation by a thick aquitard layer.

117Mr. Lister contends that the issue is not the geologic layer from which he draws water. It is his view that his well is impacted by surface water and seeps.

118Mr. Lister lost water in 2007 and it was replaced by Dufferin while an investigation of the cause of the water loss was undertaken.

119Mr. Murphy testified that 2007 was a particularly dry year. Mr. Lister, a farmer, testified that he could not recall that being the case.

120Extensive groundwater and surface water studies have been undertaken between the existing quarry and 17th Sideroad, which is south of the Lister property.

121Concerns expressed about water for properties on the 4th Line, specifically including the concerns raised by Mr. Lister, were reviewed by the JART hydrogeologists responsible for reviewing the proposed quarry extension. Included in this group were a third party consulting hydrogeologist and hydrogeologists for the Region, the two conservation authorities and MOECC. Their conclusions supported earlier studies that problems with the Lister well water supply were not attributable to the existing quarry.

122Mitigation of impacts and protection of the water resource are requirements of the licence. They are also secured through the legal agreements into which Dufferin has entered with the public agencies.

123Mr. Lister acknowledged that he has not read any of the mitigation requirements and is not familiar with any of the legal agreements, all of which have been posted on the Region’s website in an effort to ensure broad public access to this information.

124Included in the mitigation requirements is the recharging of groundwater levels around the south and east with discharge to wetlands beyond the quarry limits. This mitigation is expected to greatly reduce or eliminate potential groundwater dewatering influences south of the existing quarry and is expected to raise some groundwater and surface water levels.

P.O.W.E.R.

125Doris Treleaven addressed the Board as the representative for P.O.W.E.R.

126Ms. Treleaven was candid that past disputes with Dufferin made P.O.W.E.R. a bit suspicious. She indicated that P.O.W.E.R.’s principal concern is that monitoring occur properly and that notifications go to the public agencies. She acknowledged that the legal agreements and conditions of the NEC Development Permit are substantial and represent important elements in meeting P.O.W.E.R.’s concerns.

127Ms. Treleaven closed by indicating to the Board that she had no other concerns to bring to the Board.

Legal Agreements

128By the time of the hearing, Dufferin had entered into six legal agreements with the public agencies. Copies of those six executed agreements were filed as Exhibit 3 in these proceedings. Those agreements are:

a. Public Benefits and Environmental Protection Agreement b. Conveyance Agreement c. Haul Route Agreement d. Adaptive Management Plan Agreement e. Ecological Enhancement Plan Agreement f. Water Management Agreement

129A seventh agreement was filed in draft as Exhibit 10 in these proceedings. That agreement is the Niagara Escarpment Development Permit Agreement. Dufferin and the NEC have both agreed to its contents and the Board understood that there would be no further changes. An executed copy was simply not available at the time of the hearing.

Public Benefits and Environmental Protection Agreement

130This is a broad agreement which sets out the general obligations Dufferin has assumed to provide a variety of public benefits and to protect and enhance both the natural environment and water resources.

131This agreement references the other specific agreements and includes requirements for compliance, indemnification and dispute resolution that governs all the agreements. One element of particular note is that this agreement commits Dufferin and the Region to work together on public infrastructure projects that focus on the effective recycling of concrete products.

Conveyance Agreement

132This agreement requires that certain lands will be conveyed to the Town both before and after quarrying has ceased and rehabilitation is completed. By requiring the conveyances in stages, the Town controls and benefits from the use of the lands at appropriate points in time and not simply at the point that the quarry ceases.

Haul Route Agreement

133This agreement is intended to limit the public impact of trucks hauling aggregate from the quarry. It includes the restriction on the use of Maple Avenue other than for local deliveries.

Adaptive Management Plan Agreement

134This agreement controls the implementation of performance based mitigation to protect natural heritage features and water resources. It includes the specific requirements for monitoring surface and groundwater and specific requirements for notifications to public agencies. This agreement reinforces the proactive nature of the Adaptive Management Plan. Several of these enhancements have been noted above.

Ecological Enhancement Plan Agreement

135This is the agreement that secures certain landscaping and ecological compensation works to implement the requirements of the Region’s official plan and of the Town’s official plan.

Water Management Agreement

136While quarrying and rehabilitation activities are underway, water management is Dufferin’s responsibility.

137This agreement governs the manner in which water management will occur following the completion of extraction and the lake filling that is part of the rehabilitation plan. Of particular note is that the agreement provides for Conservation Halton to assume the operational and water management responsibilities regarding lake levels and mitigations systems.

138In addition, Dufferin will establish a legacy fund designed to ensure that there is no cost to the public to operate the water management system over the long term.

Niagara Escarpment Commission Development Permit Agreement

139The NEC has identified a number of conditions of NEC Development Permit approval applicable to the lands that are subject to a NEC Development Permit. Condition 13(a) and condition 13(b) are of particular note.

140Condition 13(a) requires that certain lands will be added to the Niagara Escarpment Parks and Open Space System.

141Condition 13(b) requires and independent peer review of the monitoring reports required by the Adaptive Management Plan which are not included in a peer review report provided to the NEC that is referenced in another agreement associated with the Development Permit. This requirement ensures that the NEC is fully included in the group of public agencies that will receive, and be able to analyze and assess, all monitoring reports particularly associated with matters that may impact natural heritage features.

Findings and Interim Decision on Planning Instruments and Aggregate Extraction Licence

142Several planning instruments, along with the aggregate extraction licence, are included in the undertakings and are before the Board for approval. These instruments are designed to work together to permit the mineral aggregate extraction proposed by the quarry extension while protecting and enhancing natural features and water resources.

143The Niagara Escarpment Plan Amendment is found at Appendix #1.

144The NEC Development Permit, subject to conditions, is found at Appendix #2.

145Regional Official Plan Amendment No. 44 is found at Appendix #3.

146The Town of Halton Hills Official Plan Amendment No. 23, as modified by the Region, is found at Appendix #4. The Region reviewed the initial official plan amendment and proposed a number of modifications to bring it into line with the Region’s Natural Heritage System approach and policies. The modifications are in keeping with the overall approach for this quarry extension and they have been accepted by the Town and by Dufferin.

147The Town of Halton Hills By-law No. 2015-0033 is found at Appendix #5.

148The aggregate extraction licence, subject to conditions and with associated site plans, is found at Appendix #6.

149The Board finds that the planning instruments are consistent with both the 2005 PPS and the 2014 PPS and appropriately implement matters of provincial interest as found in s. 2 of the PA.

150The Board finds that the Niagara Escarpment Plan Amendment, found at Appendix #1, conforms to, and does not conflict with, the objectives of the Niagara Escarpment Plan.

151The Board finds that the NEC Development Permit, subject to conditions and found at Appendix #2, conforms to, and does not conflict with, the Niagara Escarpment Plan as modified by the Niagara Escarpment Plan Amendment found at Appendix #1.

152The Board finds that Regional Official Plan Amendment No. 44 found at Appendix #3, the Town of Halton Hills Official Plan Amendment No. 23 found at Appendix #4, and the Town of Halton Hills By-law No. 2015 -0033 found at Appendix #5, conform to the Greenbelt Plan for the geographic areas that are within the Greenbelt Plan area and do not conflict with the Niagara Escarpment Plan for the geographic areas that are within the Niagara Escarpment Plan area.

153The Board finds that the Town of Halton Hills Official Plan Amendment No. 23 conforms to the Regional Official Plan.

154The Board finds that the Town of Halton Hills By-law No. 2015-0033 conforms to the Town of Halton Hills Official Plan as modified by the Town of Halton Hills Official Plan Amendment 23.

155The Board finds that the proposed licence for the quarry extension is consistent with the 2014 PPS, conforms to the Greenbelt Plan, conforms to and does not conflict with the Niagara Escarpment Plan as modified by the Niagara Escarpment Plan Amendment, complies with the NEC Development Permit, subject to conditions, conforms to Regional Official Plan Amendment No. 44, conforms to the Town of Halton Hills Official Plan Amendment No. 23, complies with the Town of Halton Hills By-law No. 2015-033 and has had appropriate regard for the matters set out in s.12(1) of the ARA.

156The Board approves these undertakings.

157The Board withholds its final decision for 90 days to enable a final review by the parties for any technical or formatting modifications that may be necessary. The Board may issue its final decision earlier if the Board is advised by the parties that all matters are now final. If difficulties arise, the Board may be spoken to.

Undertakings Approved

“Susan de Avellar Schiller”

SUSAN DE AVELLAR SCHILLER vICE-cHAIR

Appendix 1 – Proposed Niagara Escarpment Plan Amendment PH 180 Appendix 2 – Niagara Escarpment Development Permit Appendix 3 – Amendment No. 44 to the Region of Halton Official Plan (2009) Appendix 4 – Amendment No. 23 to the Official Plan of the Town of Halton Hills Appendix 5 – Town of Halton Hills Zoning By-law No. 2015-0033 Appendix 6 – Aggregate Extraction Licence No. 625003

If there is an appendix referred to in this document, please visit www.elto.gov.on.ca to view the appendix in PDF format.

Office of Consolidated Hearings Environmental Review Tribunal A constituent tribunal of Environment and Land Tribunals Ontario Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248