Kelly & Adams, Anderson, Blair et. al. v. Ontario (MNRF), 2021 CanLII 109359

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 26, 2021

CASE NO(S).: MM200017

PROCEEDING COMMENCED UNDER subsection 11(5) of the Aggregate Resources Act, R.S.O. 1990, c. A.8, as amended

Referred by: Katie O’Connell

Objector: Dan Kelly and Maureen Adams

Objector: Ilona Anderson

Objector: Kelvin and Myrtle Blair

Objector: Britt Drumm-Nodwell; and others

Applicant: Paul and Sandi Greer

Subject: Application for a Class B licence for the removal of aggregate

Property Address/Description: 1002 Ridge Road

Municipality: Prince Edward County

OLT Case No.: MM200017

OLT File No.: MM200017

OLT Case Name: Kelly & Adams, Anderson, Blair et. al. v. Ontario (MNRF)

Heard: October 5 and 6, 2021 by Video Hearing

APPEARANCES:

Parties

Counsel*/Representative

Paul and Sandi Greer ("Applicants")

Gregory Meeds*

Doug Lester, Charlene Lester, Simon Lester and Maureen Adams ("Lester Objectors")

Andrew Baker*

Waring’s Creek Improvement Association (“WCIA”)

Mark Dorfman

John McKinnon ("Objector")

Self-represented

Britt Drumm-Nodwell ("Objector")

Did not appear

MEMORANDUM OF ORAL DECISION DELIVERED BY T.F. NG ON OCTOBER 6, 2021 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1Paul and Sandi Greer (the “Applicants”/”Greers”) made an application for a Class “B”, Category 7 Pit licence to extract aggregate above the water table and to approve Site Plans for that licence under the Aggregate Resources Act (“Permit Application”). As the written objections to the permit application were not resolved, the Ministry of Natural Resources and Forestry (“MNRF”) referred the application to the Local Planning Appeal Tribunal (now known as the Ontario Land Tribunal) (the “Tribunal”) pursuant to s. 11(5) of the Aggregate Resources Act (“ARA”) to determine whether a licence should be issued.

2The proposed Greenridge Farm Pit (the “subject property”/”proposed pit”/”extension pit”) is located near 1002 Ridge Road near Picton, Ontario. It is proposed to be opened and operated as an extension to the existing Greer Pit (Class “B”, Licence No. 3040), which is in a rural area, immediately to the east of the Leavitt’s sand and gravel pit (Class “B”, Licence No. 2907). The proposed Greenridge Farm Pit lies to the north of both the aforementioned sand and gravel pits. The proposed pit site is presently used to grow asparagus. Fourteen residences are located within roughly 500 metres (“m”) of the subject property, with the closest residence about 30 m from the east side of the proposed pit. Additionally, there is one commercial building on the subject property, but outside of the proposed licence boundary. The location for the proposed pit (“site”) is an operating asparagus farm owned by the Greers, located approximately 7 kilometres (“km”) southwest of Picton, at Part Lots 6 & 7, Concession 1, Military Tract, (“subject property”) in the former Township of Hallowell, Prince Edward County (the “County”).

3The MNRF objected to the permit application on the basis of deficiencies in the Natural Environment Report’s discussion of significant wildlife habitat and species at risk. The objection was resolved after the Applicants provided additional information through their ecological expert’s report.

4The County initially objected pending a consideration of the Official Plan Amendment and Zoning By-law Amendment applications for the proposed aggregate pit, contending that additional studies may be requested by the County, which may affect licence conditions.

5The County did not maintain its objection under the ARA as the subject land has since been redesignated and rezoned. Those planning applications are not before the Tribunal.

6As of the date of the hearing, the MNRF and the County no longer maintain their objections. On the first day of hearing, counsels for the Applicants and the Lester Objectors informed the Tribunal that they are negotiating, in earnest, to resolve the matters with good prospects of a resolution. An adjournment until the next day was requested and granted by the Tribunal for this purpose.

7On the following day, the parties requested a further two hours to work out the final draft of the Minutes of Settlement. The Tribunal was impressed with the cooperation and willingness of the parties to work towards that resolution, which eventually resulted in the proposed settlement represented by the Minutes of Settlement, which was marked as Exhibit 5.

8The Tribunal was advised that the Lester Objectors including Waring’s Creek Improvement Association (“WCIA”) and John McKinnon will withdraw their objections. As a result, the Tribunal proceeded to consider the expert evidence presented in support of the Permit Application. Four of the Applicants’ witnesses were qualified by the Tribunal in their respective specializations, and they each adopted their Witness Statements (as suitably modified by the proposed settlement), which were marked as Exhibits. The witnesses were:

a) Rob Snetsinger, a Biologist (Witness Statement, Exhibit 1).

b) John Pyke, a hydrogeologist (Witness Statement, Exhibit 2).

c) James Parkin, a land use planner (Witness Statement, Exhibit 3) and,

d) Amarjit Sandhu, an ARA specialist (Witness Statement, Exhibit 4).

9The Tribunal agrees with the uncontroverted evidence from the expert witnesses and based on the settlement reached between the Parties, approves the issuance of the aggregate licence, subject to the amendments as provided for herein.

ANALYSIS AND EVIDENCE

10Mr. Snetsinger, the founder of Ecological Services, provided a report in 2016 and it is his testimony and opinion that the proposed expanded Class “B” pit licence is possible without causing negative natural heritage impacts for the purposes of the County Official Plan (“County OP”) and the Provincial Policy Statement, 2020 (“PPS”).

11There are no recognized provincially significant wetlands within 500 m of the pit license boundary. The significant West Lake wetland is over 1 km from the pit licence boundary, to the southwest. He said there are no endangered or threatened species identified for the pit licence area.

12Significant woodland was recognized within 500 m and addressed in the Ecological Services (2016) Report. In 2021, the 120 m adjacent lands distance is still the relevant adjacent land distance in current aggregate policy for Natural Environment impact assessments and the 500 m distance is an area of influence for potential air, noise and blasting impacts from a quarry operation, primarily out of concern for residential dwellings. The proposed Greer Class “B” pit extension licence is not a quarry and will not involve blasting.

13Mr. Snetsinger opined that impacts to significant natural heritage features are expected to be negligible because the proposed pit will operate within an existing asparagus farm. By its nature, asparagus farmland is relatively barren, for which the surrounding ecology has adapted. Future pit operations will not be a notable change to that status quo.

14The proposed pit will be consistent with the County OP regarding 50 m setbacks from the Waring’s Creek Watershed. The closest riparian area is about 700 m west of the proposed pit operations. It is approximately 10 m wide and is surrounded by cash crop farmland. The closest tributary is a farm drain within this riparian area, and it is about 700 m from the proposed Class “B” pit extension licence boundary. There is wetland within the adjacent woodland, but the boundary of that wetland is more than 50 m from the proposed Class “B” pit extension licence boundary.

15The pit operations are relatively benign from an ecological impact perspective because it is relatively easy for mechanical excavators to remove the pit aggregate. Methodologies that could have negative offsite impacts such as blasting, the use of extraction chemicals, or intrusion into adjacent natural heritage features are not required. Furthermore, in his work at other active pits in Eastern Ontario, Mr. Snetsinger observed that adjacent significant natural heritage features have continued to thrive (including a high-quality brook trout stream), which indicates the low impact potential of a sand pit operation. As part of the proposed settlement, measures are put in place to ensure the Waring’s Creek watershed continues to be unaffected.

16On the contentious issue of Blanding’s Turtle and the 2016 field effort undertaken for Blanding’s Turtles, (which was said to be insufficient to come to the conclusions of a low presence probability), six surveys were conducted in and around the farm pond in June 2021, and one was conducted in July 2021, on sunny days with temperatures ranging from 18°C to 23°C with an average of two hours on site. The pond offers good search conditions as it is located below the surrounding land and lacks emergent vegetation that could mask turtles from view. This provides good sight lines from above where turtles within the pond could be easily seen. This is in line with the MNRF (2016) protocol. In total, the search effort between 2016 and 2021, included15 visits (this includes evening nesting times).

17Blanding’s Turtles are far ranging and exist throughout the County, but there can be an inherent assurance of turtles being absent from a site based on the level of field work, but also on the quality of the habitat. It is Mr. Snetsinger’s opinion that the pond is not a good overwintering habitat, but if it is used for overwintering, the risk to the turtles from the pit operation would be low. This is because the pond will continue to operate as it has in the past, in support of the asparagus farm regardless of pit operations. Furthermore, pit operations will be setback from the pond. If anything, the potential for reduced irrigation when some of the farm is taken out of production, due to pit operations, has the potential for a positive impact to potential pond habitat.

18The asparagus farm does have appropriate soil substrates for turtle nesting. However, asparagus farming is not favorable to turtle nesting. Peak asparagus farm activity coincides with the peak turtle nesting season when there are 14 laborers working throughout the farm for about 10 hours every day from early May to late June, with farm machinery running on every row throughout that time. Nests would be destroyed by the periodic replanting to sections of the asparagus farm which requires soil cuts. The necessary application of pesticides on the farm could be injurious to incubating eggs. In summary, the asparagus farm where the pit will be located is not a turtle favorable place. Mr. Snetsinger noted that the vernal pools within the woodland and swamp to the west of the asparagus farm do not contain ideal habitat features for the Blanding’s Turtles. It is his opinion that he has undertaken sufficient efforts to provide reassurance on the low probability of Blanding’s Turtles being present. However, as the parties have settled the many issues, he testified that fencing enclosure may be appropriate to account for the potential of Blanding’s Turtles nesting on the site.

19Mr. Pyke’s evidence related to the hydrogeological matters in the land use. He conducted a study to determine the groundwater elevations in the proposed pit area. He reviewed the Ontario Ministry of the Environment and Climate Change (“MOECC”) Water Well Records (“WWR”) for wells within 500 m of the site. He reviewed previous environmental or geotechnical reports or records, including drill hole logs. He advanced six test pits, in the proposed pit areas, to determine the groundwater level in the area; and determined the elevation of groundwater observed in the test pits and elevation of adjacent surface water using the unmanned aerial vehicle (“UAV”) survey completed by GeoOptic (Airborne Mapping and GIS Services).

20The local hydrogeology was assessed through the review of the MOECC’s WWRs. The locations of the WWRs are based on locations provided by the MOECC online WWR mapping tool, and may not be accurate. The nearby wells were drilled for domestic, commercial, and stock use to depths between 8.5 and 29 m below grade (“mbg”), with elevations between approximately 61 and 80 m above sea level (“masl”). The wells were completed between 1957 and 2013.

21The WWRs report 1.5 to 27 m of overburden in the area. The bedrock is reported in the WWRs as limestone. The groundwater table was identified by the drillers at depths between 2.4 and 14.3 mbg, or approximately 72 to 86 masl (Table 1 of Exhibit 2). According to the recommended pumping rates listed on the WWRs, the wells are able to produce between 4.5 and 180 L/min of water.

22Test pits were advanced through sand in the area of the proposed Greenridge Farm Pit and the existing Greer Pit floor to between approximately 2 and 6 mbg. Test pits were left open for around 15 to 20 minutes after reaching the groundwater table to allow for the groundwater to approximately reach static levels. Test pits could not be left open longer due to instability of the pit walls. Static groundwater levels in test pits were measured between 2.0 and 5.1 mbg, or approximately between 79.6 and 81.4 masl (Table 2). No groundwater was encountered in test point (“TP3”) at 6 mbg (84.2 masl), the maximum depth achievable by the excavator.

23On December 8, 2016, Mr. Pyke’s firm, Malroz Engineering, measured the depth to water in well 5307578 (Tag No. A024682) (Figure 1) to be 9.24 mbg, which correlates to a static groundwater elevation of approximately 81 masl (Table 2).

24The topographic survey of the property was completed by GeoOptic on December 9, 2016. The six test pits were surveyed using an Epoch50 Real Time Kinematic GPS with connection to a Virtual Reference Station Network. These six locations were also used as ground control points for the UAV survey.

25The UAV survey determined the elevation of the surface water in the pond to be approximately 81.0 masl. The floor of the adjacent Greer Pit and the Leavitt sand and gravel pit were determined to be 82 masl.

26Results of the current test pit program, groundwater water level monitoring, and UAV survey indicate that the groundwater table is located in the sand overburden at the site at a maximum elevation of 81.4 masl. Although several WWRs reported groundwater table elevations at elevations above 82 masl, Mr. Pyke is of the opinion that the UAV survey and test pit measurements from the current investigation provide a better reflection of groundwater table elevations for the present site conditions.

27The groundwater table was measured between 79.6 and 81.4 masl in test pits advanced into the proposed and existing pit floors. The groundwater elevation in the onsite well No. 5307578 was recorded at 80.8 masl. Groundwater at the site is located in the sand overburden. A pond located adjacent to the western boundary of the proposed pit has a surface elevation of approximately 81.0 masl.

28Through the Water Balance Analysis and Preliminary Stormwater Management letter report, it was Mr. Pyke’s opinion that extraction operations at the pit will have an insignificant impact on both groundwater recharge and water quality. He opined that there is no negative impact on well-water, groundwater, creek or surface water.

29Mr. Pyke proposes that the floor of the proposed Greenridge Farm Pit be located at 83.0 masl, which is 1.6 m above the highest groundwater elevation identified at the site during the test pit program. The proposed elevation is 1 m above the floors of the adjacent sand and gravel pits. The Parties in the proposed settlement required monitoring measures to be undertaken as the Objectors’ experts opined that the water table needs to be affirmatively established.

30Mr. Parkin is the land use planner who gave an overview of the project from the planning perspective. He opined that the proposed aggregate operation is consistent with the PPS and conforms to the County Official Plan 2006. The Applicants’ land is designated and zoned to permit extraction. It is designated Aggregate Resource Land and zoned MX-7. The previous Hold conditions were removed when the Applicants satisfied various conditions imposed for the Hold.

31He opined that land use matters that need to be considered under s. 12(1) of the ARA, have been appropriately addressed through the review and approval of the Planning Act applications. The subject site is zoned to permit extraction. The zoning conformed with the County Official Plan 2006 as amended. These Planning Act approvals were consistent with the PPS.

32Mr. Parkin’s opinion is that the proposal represents good planning and is in the public interest. The issuance of a Class “B” licence would be appropriate and complies with the Zoning By-law Amendment that has been approved to permit the use. Matters such as setbacks and depth of extraction were evaluated in detail through the Planning Act and ARA review processes. The ARA site plans that would be approved through the issuance of the licence incorporate the necessary conditions of approval consistent with good planning principle that formed the basis for the Planning Act Approvals.

33Mr. Parkin has knowledge of and agrees with the proposed settlement that proposed changes to the site plan notes and to the site plan. He concluded that the requested Class “B” licence would be consistent with the Planning Act Approvals that have been issued. The required Official Plan and Zoning amendments (OPA and ZBA) have been approved.

34Mr. Sandhu gave evidence on the ARA requirements and the suitability of the subject land for an aggregate extraction pit.

35The ARA application was submitted on November 2, 2017, for a Class “B” licence. Concurrently, OPA and ZBA applications were submitted (these amendment applications have been approved, not appealed and are not before the Tribunal).

36A Class “B” licence is restricted by ARA statute to producing not more than 20,000 tonnes of material in a calendar year.

37The specification of a ‘pit’ means that only unconsolidated aggregate, typically sand and gravel, may be extracted. This means there is no drilling and blasting, which is an operational requirement when operating a quarry site for the extraction of consolidated bedrock to produce crushed stone.

38The ‘above water table’ specification means that, by the terms of the site plan that controls the operation, extraction will occur above the water table. The final floor elevation is determined in consultation with hydrogeological consultants who have determined the location of the water table. The pit floor has been set at least 1.5 m above the pre-determined water table elevation, which is a standard regulatory requirement for pits that are to be operated above the water table. The 1.5 m distance acts as a buffer to accommodate fluctuations in the water table, which serves to ensure that typically, the pit floor does not proceed below the water table under fluctuating conditions.

39In the current County OP, approved by the Province on July 7, 2021, the site is designated ‘Aggregate Resource Land’ which designation permits mineral aggregate operations. The site is zoned MX-7, which permits aggregate extraction.

40The proposed pit is intended to be a source of sand aggregates of known high quality. The proposed pit will replace the pit currently owned and licensed to the Applicants. This existing pit has been in operation for well-over 30 years.

41The existing pit occupies an ARA licensed area of 3.8 hectares (“ha”) and abuts another ARA licensed pit to the west. The existing pit is nearly depleted of extractable material.

42The proposed pit is to occupy an area of 15.5 ha. Extraction is proposed on 14.1 ha. The extraction area excludes excavation setbacks within, which no excavation will occur. These setbacks are in accordance with the ARA requirements being 15 m from a property line adjacent to unoccupied property, 30 m at the southeast boundary, which has frontage on Ridge Road, and 30 m from land in use for residential purposes at 988 Ridge Road.

43The proposed pit will operate in the same manner as the existing pit, which is the same for most typical ARA Class “B” licensed pits in Ontario.

44Topsoil and overburden, stripped from areas proposed for extraction, will be used to build noise-control berms. Berms will ultimately be used in site rehabilitation as top-cover for sloped pit faces and the final pit floor where it is not in pre-existing agricultural production.

45Haulage of aggregate from the site will occur by highway trucks. Use will be made of the existing pit property to provide an access road between the proposed pit and Ridge Road. A new entrance/exit will be established on Ridge Road in order to service the proposed pit. The new access is required to address a sight-line deficiency at the location of the existing pit’s existing access onto Ridge Road. The proposed new access location has been authorized by the County through the issuance of a Commercial Entranceway Permit.

46As a result of the current County OP, the proposed pit site is mapped within the ‘Watershed for Waring’s Creek’ mapping. The Waring’s Creek mapping is a new feature that is included within the current OP. It applies to a large (regional) area and includes OP policy provisions which prohibit development within the Creek’s riparian area, extending a minimum 50 m out from the top of the bank of the Creek and any tributaries, and any additional wetlands or other features providing groundwater discharge to the Creek and its tributaries. However, the pit operation does not extend beyond the 50 m and as the hydrogeological study shows, no groundwater or surface water is impacted negatively.

47It is Mr. Sandhu’s opinion that the application has had regard to the matters under Section 12 of the ARA, these are:

(a) Effect of the operation on the environment

The environment has been considered through the preparation of technical studies to ensure Provincial standards, regulations, guidelines and limits are not exceeded; and, the review of such studies and plans by Provincial and municipal agencies, including a municipal peer review. The necessary controls and restrictions on the operation have been incorporated on the site plan, which along with the Prescribed Conditions to the licence, will serve to regulate the operation.

(b) Effect of the operation on nearby communities

While there are no established ‘communities’ in the vicinity of the site, the homes located adjacent to and around the site have been considered in the design and operation of the proposed pit. The operation’s impacts in terms of visual amenity, traffic, noise, surface water and groundwater have been assessed through technical study and subjected to technical review including peer review, except for the landscaping study that addressed visual amenity that was accepted by the County.

(c) Municipal comments in which the site is located

The County has approved an OPA that changes the land use designation to permit the extractive use; and, approved a ZBA that changes the zoning classification to permit the extractive use. Both OPA and ZBA were not appealed and are now in force and effect. The Municipality’s objection to the ARA application has not been maintained.

(d) Suitability of progressive and final rehabilitation plans

The progressive and final rehabilitation plans take into account the ARA requirement to return the site to its former use or a use that is compatible with its surroundings. The rehabilitation plan surpasses the PPS and County OP requirements for agricultural rehabilitation, by providing for a return to agricultural condition on the entire former pit floor of the site as opposed to just that area that is mapped as having Class 2 soils, which would be considered prime agricultural land under the PPS. This approach has been taken as it implements the desire of the Applicants to continue the farm operation both during the pit operation and after it is finally complete.

(e) Possible effects on ground and surface water resources

The Report prepared by Mr. Pyke of Malroz Engineering, in support of the applications and during their review, have addressed both groundwater (hydrogeological) and surface water (hydrological) issues. This reporting has been peer reviewed by the municipality and Quinte Conservation Authority, as part of its review function and both have indicated their satisfaction with this matter.

(f) Possible effects on agricultural resources

The effect on the agricultural resources on the site will be limited, temporary and transient. It will only be the area of the site, which is under extraction or has been prepared for extraction where current agricultural use will cease. This is a relatively small area of the overall site, and as shown by the Applicants’ efforts in rehabilitating the floor of the existing pit to agriculture, being asparagus and sunflowers, agricultural use of rehabilitated areas is viable.

(g) Planning and land use considerations

In the current County OP, the site is designated ‘Aggregate Resource Land’, which designation permits mineral aggregate operations. The site is zoned ‘Extractive Industrial 7’ (MX-7), which zoning permits the site to be used for the establishment or operation of a pit.

Approval of the application for an ARA licence is consistent with the Provincial interests as expressed through the PPS, as follows:

• the proposed pit is located within a rural area (Policy 1.1.4.1);

• the pit operation has been designed to mitigate possible adverse effects on nearby rural residential land uses (Policy 1.2.6);

• the quality and quantity of groundwater and surface water resources will be protected, and no adverse impacts are anticipated as a result of this proposed operation (Policy 2.2.1);

• it makes additional resources available (Policy 2.5.2.1);

• it incorporates provisions for minimizing social and environmental impacts from the extraction of these resources (Policy 2.5.2.2); and,

• the pit excavation will be progressively and finally rehabilitated to a condition that returns it to its former use and is compatible with surrounding land uses (Policy 2.5.3.1).

(h) Main haulage routes and proposed truck traffic to and from the site

The off-site haul route for the proposed pit operation is Ridge Road, which is the same as has been in use for 30 years at the existing pit operation. Given the near depleted nature of the existing Pit, the new pit will simply serve to continue the traffic pattern that has been in place at the existing pit, albeit that has been much reduced in recent years as necessitated by the rationing of resource at the existing pit. In practical terms, truck traffic levels and patterns (directions of travel on Ridge Road and use of other roads) will be dependent on periodically busy and less busy times, market demands and customer location, all of which are variable.

(i) Quality and quantity of aggregates on site

Provincial aggregate resource mapping (Aggregate Resources Inventory Paper (“ARIP”) 172, published in 1999 by the Ontario Geological Survey) shows the proposed pit site to be located in a deposit identified at the 'Primary' level of significance for surficial (sand and gravel) resources. According to the ARIP text, there are only three ‘Primary’ deposits in the entire County. ‘Primary’ deposits are described in the ARIP as:

areas in which a major resource is known to exist, and may be reserved wholly or partially for extractive development and/or resource protection.

In terms of quantity, up to approximately 600,000 tonnes of resource is estimated through a volumetric calculation of the extraction footprint of the proposed pit. Mr. Sandhu noted that not all of the estimated volume may render economic quality aggregate and therefore, be subject to extraction.

(j) Applicant’s past history of compliance

The Applicant has substantially complied with the licence requirement through the years.

(k) Other matters considered appropriate

The parties have resolved all other issues through the proposed settlement.

48Mr. Sandhu opined that the proposal represents good planning and is in the public interest. This is based primarily on the PPS requirement that establishes as much of the mineral aggregate resources as is realistically possible shall be made available as close to markets as possible.

FINDINGS

49The Tribunal finds that, Mr. Sandhu has provided supportive evidence outlining the application and the proposal for the licence. The Applicant has been operating an existing pit for the last thirty years and the proposed pit is adjacent to the existing one. The extraction from the present pit is nearing depletion and that is the underlying reason for the proposed pit. Mr. Sandhu also stated that, in his years of observing the existing pit and operation, the Appellant has substantially been in compliance with the requirements of the pit licence. The observable fact is that the existing pit concurrently operates on an asparagus farm. The subject land is designated Aggregate Resource Land and zoned MX-7, which permit mineral aggregate extraction, thus the Tribunal is satisfied that the use of a pit for the purpose of sand and gravel extraction is appropriate.

50The Tribunal accepts that the Applicants have rehabilitated the existing pit operation in phases, (as soon as a section of the pit is extracted), back to asparagus farming and/or sunflower farming. The Tribunal is persuaded that, for the proposed pit, the rehabilitation program will similarly be, a rehabilitation to agricultural farming land.

51With respect to hydrogeology, the Tribunal agrees with Mr. Pyke’s conclusion that no sensitive natural heritage features will be affected by the proposed extraction within 120 m of the site, which will occur above the seasonally high water table and that there are no groundwater dependent natural features on the Site that might be adversely impacted by the removal of the aggregate. The Site Plan will provide for monitoring measures to monitor the ground water table. The Tribunal finds that with the implementation of all recommended measures, no adverse impact is anticipated on surface water or groundwater.

52The evidence before the Tribunal is that matters of protection of a potential species at risk, Blanding’s Turtles have now been addressed in the proposed settlement. Eventually, the pit extension that would be permitted under licence will be fully rehabilitated through refilling of the site soil and farming of asparagus and/or sunflowers. As well as these requirements, the adaptive management program, coupled with the well monitoring requirement relating to the water table and the establishment of the final pit floor level will ensure that the groundwater is not contaminated by the pit operation.

53Mr. Parkin’s planning opinion, supported by Mr. Snetsinger, Mr. Pyke and Mr. Sandhu, and based upon the technical reports and findings, show the terms of the Site Plan are suitable and appropriate; conform to the requirements of the County OP and will not result in adverse impact on Waring’s Creek features or ecological function, and therefore, constitute good planning.

54The Tribunal accepts the uncontroverted evidence of Mr. Sandhu that the pit operation will operate without blasting (unlike a quarry) and will not create noise issues. The Tribunal finds that s. 12 of the ARA matters have been comprehensively addressed for the subject site and aggregate operation.

55The Tribunal also accepts the uncontradicted expert evidence of Mr. Pyke that no water wells, creek or groundwater will be affected by the extractions on the site to a level of 1.5 m above the predetermined water table elevation. As for the many issues raised and settled, Mr. Pyke is of the opinion that with the proposed settlement, there are adequate measures put in place at the site, including the drill wells monitoring program and the pit floor evaluation requirement.

56The Tribunal finds that the additional notes and amendment to the Site Plan are acceptable as follows:

1. Installing, maintaining and monitoring of turtle exclusion fencing at the site;

2. Maintenance of noise mitigation berms;

3. Additional protocol for access, closure, new entrance and rehabilitation to site;

4. Monitoring program with four drilled monitoring wells;

5. Ensuring no extraction within 1.5 m of the established groundwater table;

6. Implementation of the adaptive management plan to ensure groundwater separation;

7. Regulation of excess soil from stripping and temporary stockpiles of material on site;

8. Modification of the site plan to depict the four monitoring wells; the zones established by Zoning By-law No. 247-2020 and location of the survey point used to establish a benchmark elevation.

57The Tribunal finds that the Permit Application:

• is consistent with the Provincial Policy Statement 2020;

• has regard to matters of provincial interest;

• has addressed the matters set out in s. 12 of the Aggregate Resources Act;

• conforms to the County’s Official Plan;

• maintains the general intent and purpose of the zoning by-law, and

• represents good planning and is in the public interest.

58The Tribunal finds that the Permit Application should be approved in accordance with the Site Plan filed subject to the amendments requested.

ORDER

59The Tribunal hereby directs the Minister of Natural Resources and Forestry to issue a licence under the Aggregate Resources Act for a Class “B” Category 7 (Pit above water) in accordance with the Site Plan filed with the Tribunal subject to the addition of certain amendments to the Site Plan and Site Plan notes as set out in Attachment 1 to the Decision.

“T.F. Ng”

T.F. NG

MEMBER

Ontario Land Tribunal

Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

ATTACHMENT 1

SCHEDULE “A”

Amendments to the Site Plan Notes

Turtle Exclusion Fencing (TEF)

The following shall be added as Notes to the site plan:

1. The active operational part of the pit shall be fenced according to guidelines for turtle fencing provided by MNRF at https://www.ontario.ca/page/reptile-and-amphibian-exclusion-fencing. A fence product must be used that will last for the proposed duration of each active portion of the pit. Fencing product shall be replaced if the fencing degrades before completion.

2. Installation of each section of the fence must occur prior to extraction AND outside of the turtle activity season (recommended to be installed in the fall prior to extraction, over winter or in early March). This means that additional sections of the pit must be fenced if extraction is proposed to commence on additional sections during the active season.

3. A curve design must be used for the fence at the pit entrance road to direct turtles away from the entrance to the pit, as in Ontario guidelines on Figure 9 of the linked document.

4. The fencing must be inspected on a daily basis by the licensee/operator prior to the start of activity to ensure no gaps have occurred (eg. sand blow-outs which have the potential for creating gaps underneath), and that the fence is still intact and standing upright. The fenced area should also be inspected to determine if turtles have entered the exclusion area. If a Blanding’s Turtle is observed within the work area all works shall stop until the turtle has exited the area.

Noise Mitigation

The following shall be added to Note 1.30 & 1.31 (Berms):

There shall be no change to the berms and screening as identified on the site plan for noise mitigation purposes, unless such changes result from a change in operational practices (eg. equipment) and are first assessed by a professional noise engineer and approved by MNDMNRF.

Addition of Protocol for Access Closure and Rehabilitation

The final wording of Note 1.16 (Entrance/Exit) shall read:

As per the Operations Schematic, the Operational Entrance/Exit is identified at the south boundary for diagrammatic purposes as a typical location where trucks will access the Greenridge Farm Pit from the existing Greer Pit licensed site. A new entrance/exit onto Ridge Road, equipped with a gate, will be constructed at the existing Greer Pit to carry traffic to and from the existing pit and the proposed Greenridge Farm Pit. The construction of a new entrance/exit has been notified to MNRF by letter from Paul Greer dated Nov. 29, 2019. It will require approval from MNRF through a site plan amendment to the existing Greer Pit. It will be located approximately 100m east of the current Greer Pit entrance location which will be discontinued for aggregate haulage and rehabilitated to the satisfaction of the County. The proposed new entrance at Ridge Road has been approved through the issuance of a Commercial Entranceway Permit by the County. It will be constructed to MTO Standard CSAS-23. 'Truck Entrance' warning signage 'Wc-8L' as per the current version of the Ontario Traffic Manual (OTM) will be installed on Ridge Road prior to use of the new entrance/exit. Given this is a common boundary and there will be a progression of the current Greer Pit extraction face northeasterly into the Greenridge Farm Pit, access for entrance / exit purposes will be made across the length of the common (south) boundary, and no gates will be installed subject to the gate at the new Greer Pit entrance / exit onto Ridge Road being maintained in place.

Monitoring

The final wording of Note 1.18 shall read:

The groundwater table was measured between 79.6 and 81.4 masl in test pits advanced into the proposed Greenridge Farm Pit and existing Greer Pit floors, as per Hydrogeological Evaluation for the Proposed Greenridge Farm Pit, Malroz Engineering (October 17, 2017). Determination of the groundwater table shall be undertaken through a Monitoring Program undertaken by a professional hydrogeologist as follows:

• using 4 drilled monitoring wells (DMW-1 to DMW-4) installed by a licensed well-driller;

• surveying of wells to determine geodetic elevation;

• equipping of wells with secured data-loggers;

• monitoring of wells to obtain at least 6 months of groundwater level data that must include the Spring season, from March 1 to June 15 inclusive, for each well;

• preparation of a report for presentation to MNDMNRFfor the purpose of making any necessary adjustment to the current maximum (deepest) pit floor elevation of 83 masl , with such adjustment being to meet the requirement that pit extraction not occur within 1.5 m of the established groundwater table in accordance with Aggregate Resources Act Provincial Standards for a Category 7, Class B pit.

While the groundwater Monitoring Program is ongoing, excavation may occur beginning at the southeast corner of the pit site to an elevation not lower than 86 masl. Such excavation is permitted pending the outcome of the Monitoring Program and any necessary adjustment by MNDMNRF to the elevation of the Final Pit Floor.

The Final Pit Floor will be sloped to the northwest to facilitate surface water drainage.

Adaptive Management Plan to Ensure Ground Water Separation

A) When extraction occurs within 1.5m of the elevation of the Final Pit Floor, the licensee shall monitor groundwater levels in DMW-1 to DWM-4 to ensure that a 1.5 m separation distance is maintained between the pit floor and the established groundwater table.

Should the 1.5m separation to the established groundwater table not exist, an adjustment to the mining depth of the pit floor shall be made to ensure the minimum 1.5 metre separation distance is being maintained.

B) Prior to extraction occurring on any one day, Greer will monitor the depth to water at wells DMW-1 to DMW-4, as shown on the site plan drawing, through the use of a water-level meter. This information will be recorded by Greer and will be used to ensure that extraction occurs at an elevation at least 1.5 metres above the water table; and, no lower than the Final Pit Floor.

Further, DMW-1 to DMW-4 will be equipped with automatic data-loggers, which data will be downloaded by a professionally qualified firm/person and used to prepare a letter report that:

i) evaluates the elevation of the water table at DMW-1 to DMW-4 on a monthly basis over the preceding 12-month period, or lesser period in the case of the first letter report; and,

ii) evaluates the trend in water table elevation and assesses whether the water table elevation is being impacted by extraction activities; and,

iii) provides a recommendation as to whether further assessment is required or if an adjustment to the mining depth of the pit floor to an elevation higher than the elevation of the Final Pit Floor is required to ensure the minimum 1.5 metre separation distance to the water table is being maintained, which recommendation(s) shall be implemented by Greer.

The letter report will be made available to the MNDMNRF on request by the Ministry.

Addition of Excess Soil Regulation Reference

The final wording of Note 1.22 (Topsoil/Overburden Stockpiles) shall read:

There are no existing stockpiles of topsoil/overburden on-site. This type of material, where stripped from the site, will be used to construct berming at the southeast boundary of the site, fronting on Ridge Road, in stages as striping precedes extraction. Stripped material may also be stored temporarily in stockpiles in the area of active stripping/extraction.

Topsoil or other earth materials, required or generated as a result of the Licensee's construction business, may also be imported to the site and stockpiled, in accordance with the following:

1. Excess soil, as defined in Ontario Regulation 406/19 under the Environmental Protection Act, may be imported to this site for the creation of 3:1 slopes. Only sufficient material to create a 3:1 slope grade may be imported.

2. Excess soil imported for the rehabilitation purposes described above shall meet the soil quality standards set out in Table 1: “Full Depth Background Site Condition Standards”, of the Rules for Soil Management and Excess Soil Quality Standards published by the Ministry of Environment, Conservation and Parks, as amended from time to time.

3. The licensee shall ensure that the acceptance and reuse of excess soil imported for rehabilitation purposes is compliant with Part I: Rules for Soil Management of the “Rules for Soil Management and Excess Soil Quality Standards published by the Ministry of Environment, Conservation and Park and as amended from time to time. At the request of MNDMNRF, the Licensee will conduct random sampling of the imported material to ensure it meets applicable criteria, with sampling results to be provided to MNDMNRF upon request.

Such stockpiles will not be located within 30 m of the southeast boundary at Ridge Road or within 90 m of the southeast boundary where it is adjacent to land in use for residential purposes (988 Ridge Road).

See also Note 1.33 - TOPSOIL / OVERBURDEN and 1.58 - SITE PLAN VARIATIONS FROM OPERATIONAL STANDARDS

SCHEDULE “B”

Amendments to the Site Plan Map

Zoning

The Site Plan Map shall be modified to reference and depict the Zones established by Zoning By-law 247-2020.

Survey Point

The Site Plan Map shall be modified to indicate the location of a survey point that is being utilized to establish a benchmark elevation for survey purposes.

Monitoring Wells

The Site Plan map shall be modified to depict DMW-1, DMW-2, DMW-3, and DMW-4 as set out in light blue on the attached plan: