NEC lawyer challenges policy interpretations on quarry expansion

Collingwood Enterprise Bulletin – October 8 2010
The lawyer for the Niagara Escarpment Commission (NEC) challenged the interpretation of policies by Walker Aggregates’ planning expert throughout Tuesday’s testimony before the Consolid at e d Hearings Board reviewing Walker’s application for an expanded Duntroon Quarry. Demetrius Kappos began the day’s proceedings by asking whether the company’s plans to continue processing aggregate on its current site — before mining out enough rock to move its plant to the expanded site — was contrary to the Niagara Escarpment Plan and would affect the rehabilitation plans of the existing quarry.
Walker’s planner replied “no” to both questions.
The Niagara Escarpment Commission is opposing the application for an expanded Duntroon Quarry.
Kappos then challenged references Clarkson made in his witness statement about the amabel dolostone at the proposed quarry location being a “provincially significant resource.” He asked the planning basis for describing the rock in this way. Clarkson replied that this description came from correspondence from the Ministry of Northern Development and Mines and from aggregate resource inventory papers for some jurisdictions in the province.
The NEC lawyer spent a considerable amount of time asking Clarkson about significant natural heritage features at and around the proposed quarry site. Kappos asked Clarkson to agree that the designation of such features is not up to the Ministry of Natural Resources, but in the purview of the NEC and the local planning authority.
Clarkson responded, “Yes, and in the case of a dispute, the decision rests with the board.”
Clearview Township and the NEC disagree on the matter of whether the proposed quarry will have a negative impact on the natural heritage features at the site.
Another topic which Kappos probed in detail related to whether the replacement of woodlands as part of the rehabilitation plan for the expanded quarry was appropriate in mitigating negative impacts of the mining operation. Clarkson said he disagreed with an opinion that such replacement was not consistent with the Provincial Policy Statement.
Kappos concluded his day’s cross examination by asking Clarkson why Walker chose to reduce the size of its licence area from its original plan in 2005.
Clarkson replied that, “The intent was that the entire expansion lands be included within the proposed Aggregate Resources Act license boundary to provide greater protection of sensitive natural heritage features.”
 He explained that this way, details about protecting such features and about rehabilitation plans would be included as part of the quarry’s site plan notes. He went on to say that Walker agreed to reduce the size of its licence area to address issues raised by the NEC.
On Wednesday, Clarkson said the American Hart’s Tongue Fern would receive more than adequate protection in the company’s plans to expand its Du ntroon Quarry.
When asked by Kappos why the area where the ferns are to be retained is within the expanded quarry license boundary, Brent Clarkson replied that this would give the plants an added level of protection under the Aggregate Resources Act “including the one that invokes fear on the part of an operator, and that is losing his licence.”
The American Hart’s Tongue Fern is designated as being of “special concern” in Ontario. A colony of the ferns on Walker’s proposed Duntroon Quarry expansion lands is located within the proposed license area but in an area that will be protected from extraction by a 50-metre buffer.
In his cross examination before the board, Kappos also asked Clarkson a range of questions relating to possible amendments to the quarry site plan, the Adaptive Management Plan designed to detect and mitigate any potential negative environmental impacts, and the financial assurances arrangement that Walker would put in place to ensure the quarry was rehabilitated and that monitoring of the rehabilitation efforts would occur.
Once Kappos completed his cross examination, the lawyer for the Clearview Community Coalition, David Donnelly, began his questioning of Clarkson. Donnelley’s questions ranged from ones relating to Clarkson’s experience with quarry applications to his views of what constituted a quarry expansion as opposed to a new quarry application, the colour of the land where the expanded quarry would be located and the market for the stone to be extracted.
In particular, he pressed the Walker planner on the agreement the company had made with Simcoe County and Clearview Township to close a portion of County Road 91 from County Road 31 to the eastern portion of the Walker property. When asked by Donnelly whose idea it was to close the road, Clarkson replied that it was the County of Simcoe which proposed the idea.
Donnelly also asked whether the road closure was part of Walker’s open and transparent process during its seven years of work on the expanded quarry application. Clarkson maintained that the company was more open and transparent, and had engaged in more community consultation, than other proponents he has worked for. He further went on to say the settlement, including the road closure decision, needed to be made by the County in a closed council session. This was because the quarry application was before a judicial body – the Consolidated Hearings Board -and the discussions therefore needed to be confidential.
Donnelly’s cross examination resumed yesterday.