Case No. 08-030 OFFICE OF CONSOLIDATED HEARINGS Re Nelson Aggregate Co. In the matter of an application by Nelson Aggregate Co. filed June 18, 2008 for a Hearing before a Joint Board pursuant to section 3 of the Consolidated Hearings Act, R.S.O. 1990, c. C.29, as amended, regarding a proposal to extend Nelson Aggregate Co.’s existing “Burlington Quarry” onto Part of Lots 17 and 18, Concession 2, N.D.S., in the City of Burlington, and Regional Municipality of Halton for the purpose of extracting aggregate material (primarily dolostone) Category 2 – Quarry Below Water. CLOSING SUBMISSIONS ON BEHALF OF SARAH HARMER (PARTICIPANT) January 26, 2012 As a Participant at the Nelson Aggregate Joint Board Hearing I put forward the following final submission for consideration to Hearing Officers Ms. Susan Schiller, Ms. Heather Gibbs and Mr. Dirk Vanderbent. Dear Panel Members, My submission is based upon evidence heard at the hearing from expert and government witnesses in ecology, hydrogeology, hydrology, planning, and aggregate operations and enforcement. Non-expert witness testimony including that by presenters and participants also informs this submission. Additionally the recent submission by the proponent of MNR letter of Dec 12, 2011, specifically AMP reference to wetlands 13032 and 13033, which are both located on our family property, raises issues and concerns of engineering, access, and notice. The Harmer family has demonstrated throughout this 7-year process a dedication to the species that also call our farm home. We initiated the research by MNR biologists that led to the discovery of the Endangered Jefferson Salamander, and have always been very open to discussing its protection with Recovery Team experts. This late evidence expresses scant detail, and was produced without any consultation with us. For such a rare occurrence of this Endangered species, one of only 27 breeding areas in the Province, this demonstration of “mitigation” is, in my submission, unacceptably weak. The Species at Risk on our farm, which my family has been stewards of for over 40 years, includes the Bobolink grassland bird and the Jefferson Salamander. These highly vulnerable species, and many others, are thriving due to the pristine state of their habitats. We agree with the MNR biologist who allowed that truthfully, the best strategy to protect these important species is to keep their habitats natural. Request It is my submission that at this time, the appropriate decision of the Board is to deny this application. Experts in the critical fields of planning, hydrogeology, and ecology have demonstrated fundamental problems with this proposal. Firstly, the planning case for this application is based on outdated science and an incorrect land use designation under the Niagara Escarpment Plan (NEP). The designation “Escarpment Rural”, which allows for the contemplation of mineral extraction, is inaccurate and inappropriate because it does not incorporate updated and current Provincially and Regionally sanctioned science, and the official designations of Provincially Significant Wetlands (PSW) by Ministry of Natural Resources (MNR), and the Natural Heritage System (NHS) by the Region of Halton. Based on evidence heard by Registered Planners Mr. Anthony Usher, Ms. Nancy Mott-Allen, and Mr. Ho Wong, were these designations properly incorporated into the NEP designations, the PSW’s would be re-designated “Escarpment Natural” and the NHS would be re-designated “Escarpment Protection”. These categories of land- use under the NEP do not allow mineral extraction, and therefore most of the subject site could not be considered. Additionally, as the extraction footprint and other elements of this proposal have changed numerous times throughout the review process, and, as illegal and destructive alterations to the site were made while ecological review was being undertaken by the government agencies, including MNR, it is my opinion that the most current and updated science be in place to form the basis of the Board’s evaluation. Based on the evidence, I submit that from a planning perspective the underlying weakness of this proposal is clear. Secondly, the Board has heard a wide divergence of opinion on hydrogeology between the proponent’s witnesses and the witnesses of the opposing parties. Such substantial difference of expert opinion emphasizes the remaining uncertainty regarding protection of Significant Wetlands, Species at Risk and ANSI’s (Lake Medad). The proponent has had sufficient time to address and assuage these uncertainties but in my submission has been unable to successfully do so. The Board heard that despite copious amounts of material and data collection the proponent’s water experts did not demonstrate through pump testing what the actual impacts to the wetlands would be under true quarrying conditions. The Board also heard that the bulk of the proponent’s own data on hydro-conductivity of overburden reveals a great risk to wetlands due to high conductivity and soil diversity. Despite the fact that, as their Counsel expressed during cross examination of hydrogeology expert Mr. Ray Blackport, the company has been “consistent” in its overall conclusions, their actual data does not express a basis for this level of confidence. In other words they were consistent in their conclusions regardless of what their data showed. Mr. Blackport, who has reviewed the hydro-geological elements of this proposal for the past 5 years, concluded that the water levels in the bedrock currently control the water levels in the overburden, and that when the proposed quarry would lower the water levels in the bedrock, the bedrock groundwater would no longer be able to “hold up” the water in the wetlands. Reasonable possibilities of substantial groundwater problems, and in turn wetland impacts, were established during the hearing, and yet the Adaptive Management Plan (AMP) that has been proposed was not designed with those substantial risks in mind. Instead, the AMP is prefaced on the proponent’s position that impacts are highly unlikely. What details there are in the AMP reflect this position, and reflect substantively different levels of detail than would have been included had the possibility of impacts been given appropriate weight. The very late inclusion by Nelson and MNR of the mitigation concept for wetland 13032 and 13033, by way of the Dec 12, 2011 MNR letter, is a telling example of this. With the evidentiary portion of the hearing completed, the Adaptive Management Plan that has been proposed must now be considered a final document and judged on its current merit. During the hearing the proponent’s Counsel objected to the inclusion of evidence that had potential to demonstrate “lesson’s learned” from AMP mitigation at other aggregate operations in the vicinity. Despite this objection the Board heard relevant discussion of quarrying operations at the neighbouring Dufferin Milton site, specifically the V2 wetland, where, in the same escarpment geology, an ostensibly protected Species at Risk breeding wetland is being negatively impacted by extraction taking place at a distance of more than 300 hundred metres. We heard MNR biologist Mr. John Pisapio and Salamander expert Dr. James Bogart describe the draining of this wetland and the unsolved negative impacts to Jefferson Salamander breeding at this location. I am not aware that the Board heard any evidence that the rock/geology on Mount Nemo is different than elsewhere along the escarpment, including at the Milton location. Substantial uncertainty of the effectiveness of proposed mitigations systems were expressed during the hearing. Although grouting is found in AMPs for aggregate operations, grouting specifically for wetland protection, as brought forward by the proponent’s witnesses, was not shown to be used or tested successfully. To my knowledge it is more a theoretical form of remediation for this type of problem and was not demonstrated within this hearing to have been tested or even tried in Ontario for similar wetland protection circumstances. Groundwater recharge is also a mitigation scheme whose effectiveness here or at other similar operations, was not to my knowledge, demonstrated. World leading ecology expert Dr Reed Noss testified that this proponent did not follow standard AMP protocols. In my submission, adaptive management planning of this nature should not be limited to individual projects, and in fact would be likely much more reliable and successful if data and information on effectiveness of mitigation measures etc. were shared among operators and the review agencies. I expect the outcome would be more effective proposals, and mitigation systems that instilled much higher levels of confidence. The board has not seen this demonstrated here. As mentioned, this Board witnessed the opposite- reluctance from the proponent and their consultants to share relevant experiences and outcomes from other quarries. Similarly, the proponent did not show willingness nor a sense of responsibility to demonstrate consideration of cumulative effects in their proposal, beyond some consideration of the immediate vicinity of their existing 650-acre pit, and adjacent lands. The Niagara Escarpment is a narrow landscape feature with the highest biodiversity in Southern Ontario. While large developments on the escarpment are supposed to consider cumulative effects, in accordance with the Niagara Escarpment Commission and its monitoring programs, there is no cumulative effects assessment in this proposal. As was heard through testimony given by MNR Biologist Mr. Pisapio, the assessment of cumulative effects is also a mandated requirement of the MNR itself under its Statement of Environmental Values (SEV). Mr. Pisapio testified however that he did not consider cumulative effects in this proposal. The board also heard from that MNR Aggregate Inspector Ms. Cathy Douglas that she too did not consider this requirement. Further to the AMP and enforcement, I do not believe it was made clear during the hearing as to how the protection of Jefferson Salamander and its habitat in the AMP is positioned relative to the Endangered Species Act (ESA). We know that the Aggregate Inspector does not have the knowledge or authority to determine if the habitat or the species has been harmed. Based on a water target level not being met, the Aggregate Inspector does not have the authority to determine whether the Jefferson Salamander or its habitat has not been damaged, nor does she have the authority to enforce the prohibitions on harming endangered species under the ESA. The AMP is silent on determining any violations under the ESA. In my submission the AMP allows for a chance to fix the problem, and then another chance, and then another. The ESA does not allow for this. Therefore it appears that the AMP is a “free pass” on ESA protection and enforcement, and in my estimation this is a violation of the ESA and does not comply with provincial law. I also believe that this would be of interest and concern to the Environment Commissioner of Ontario. The recent Dec 12, 2011 proposal for the hilltop pond 13032, and wetland 13033, is contingent on off-site property access although the proponent’s engineering expert claimed during reply that grouting could be used to save the wetland, without need of property access. The Proposal appears by its brevity and lateness to be an obvious after thought on the part of the MNR and the proponent. >From my reading of the language in the letter, and evidence given by Mr. Brian Zeman, the plan appears to be to 1. Monitor the cause of any impacts to the pond, and then 2. If company determines any negative impacts are connected to quarrying activities, to 3. Stop extraction. In my submission this is neither mitigation nor contingency planning, and is also silent on the Endangered Species Act, as groundwater drawdown in the pond would presumably be a violation under the ESA. The letter refers to pre-specified contingencies, but these only include monitoring and stopping extraction. This will not stop water from draining out of the pond. I submit that this is a deferral of a detailed plan and is therefore completely substandard and not the basis for sound decision-making. This wetland is protected by law, and no hydrogeologist at this hearing has been able to definitively and conclusively explain why it maintains water throughout the summer, regardless of amount of precipitation, and with no overland inflow. I am not formally trained in the science of rock and water, but it is my estimation from observation and experience that a groundwater connection, or at least a groundwater connection through sand and gravel seams in the overburden, that significantly contributes to maintaining its water level is possible. Based on evidence that we heard from ecologists and Mr. Blackport this pond was at some time altered (seen through the presence of slight berms). We also know that it was used by the family of Ron Lee, our former neighbour who grew up on the farm in the 1940’s, to water cattle and supply ice. It is my estimation that there is a possibility that a spring or seep feeds this feature and was bermed to help contain water for cattle watering and ice harvesting. In the face of the lack of evidence to prove this or otherwise, I submit that there is too much uncertainty to guarantee protection of this wetland feature and Endangered Species habitat. Madam Chair and and honourable panel members, I make this submission after a 7 year exploration and review of Nelson Aggregate’s application. My positions are based on the evidence of expert scientists, planners, and legal professionals, and the empirical evidence of living on Mount Nemo with my family for much of my life. I believe it is a poor application that you have in front of you, and one that can be refused solely on the lack of its technical merits. As a community, however, that has endured this heavy industry as its neighbour for almost 60 years, I believe it is also with weight that you consider the negative impacts suffered by this community. Like you I have witnessed the first hand stories of many residents and neighbours who have lived with recurring property damage, well interference, dust and noise violations. We have also heard from citizens from across the province who revere this ecologically rich landscape and recognize its quality and preciousness, and want it saved for it ecological services and for future generations. The Mount Nemo plateau is part of a world-renowned biosphere reserve. It has been recognized by UNESCO for its ecological importance. It isn’t just a chunk of rock to crush into gravel. It is an important source water area, home to thousands of precious and diverse species, forests and fields. It demands our respect and protection. I have faith that you will decide in its favour. Thank you. Sarah Harmer