NEC asks for review of quarry decision

By Michael Gennings Barrie Advance Aug 20, 2012 

DUNTROON – The Niagara Escarpment Commission (NEC) voted 9-3 on Thursday to ask the provincial court to rule on the Consolidated Hearing Board’s decision that Walker Aggregates is allowed to expand the Duntroon Quarry.

The board ruled in June, in a 2-1 decision, that the quarry can expand if certain conditions are met.

But the NEC wants the court to determine if the board made “errors in law by failing to apply,” the Niagara Escarpment Plan (NEP), says the Clearview Community Coalition (CCC), a group of Duntroon-area residents against the expansion.

In a news release, the CCC notes that board member Robert Wright “felt that his…colleagues had incorrectly given the provincial policy statement more weight than the NEP and in doing so set a ‘perilous course for development in the NEP area’.”

The CCC says it applauds the NEC’s decision to ask for a judicial review, calling it a “milestone”.

Dr. Rick Smith, an executive director with Environmental Defence, said Ontarians don’t want a quarry that puts land, water and wildlife at risk.

“I’m happy to see that the NEC recognizes this quarry in this location is a mistake,” he said.

The CCC and others argue the quarry expansion will negatively impact the surrounding environment but the hearing board and others – including the Township of Clearview, where the quarry is located – disagree.

Clearview Township councillor Shawn Davidson, who represents the municipality on the NEC, was one of three commissioners to vote against asking for the judicial review.

“At some point fiscal responsibility has to come into decision making,” he said. “And after the lengthy hearing and the majority decision, continuing this fight is becoming far too costly for the people of Ontario.”

Ken Lucyshyn, vice-president of Walker, said he is disappointed the quarry expansion now faces more delay.

“We had a 139-day hearing, all the evidence and a three-member panel – a majority of which ruled to let us proceed,” he said. “My main concern is more delay and uncertainty for our employees.”

The Consolidated Hearings Board hearing lasted 139 days over 39 weeks and heard evidence from more than 40 individuals.

The existing quarry, which is running out of aggregate, is located just west of Duntroon on the south side of County Road 91.

The expansion site is located on the north side of the county road. It consists of 149 hectares with a proposal that the company get an extraction licence for 76 hectares with the plan to actually extract aggregate from 64.8 hectares.

Walker Aggregates plans to remove about 41.4-million tonnes of aggregate from the site.

Prior to the hearing, Walker reached an agreement with Clearview Township and Simcoe County regarding upgrades to local roads near the quarry.

The county agreed to download a section of County Road 91 – between Duntroon and Grey Road 31 – to the township. A section of the road, between Nottawasaga Concession 10 and the east boundary of the quarry, will be converted to a restricted access road and a portion of the road, adjacent to the quarry, sold to Walker for use as an entrance to the quarry.

In downloading the road, the county agreed to pay Clearview $2-million to use towards improvements to County Road 91. Clearview agreed to pony up $1-million for improvements to Nottawasaga Concession 10, from County Road 91 to 30/31 Sideroad. As well, it was agreed Sideroad 26/27 would be improved to a year-round open gravel road for local traffic.

Walker has agreed to pay up to $7.5-million for the closed portion of the county road, with the money going towards the road upgrades in the area.

By Morgan Ian Adams, Collingwood Enterprise-Bulletin August 20, 2012   

COLLINGWOOD — The Niagara Escarpment Commission will appeal to the courts to take another look at the decision allowing a quarry to expand west of Duntroon.

On Thursday, the commission voted 9-3 to ask for a judicial review of the Consolidated Hearings Board decision to grant Walker Aggregates the go-ahead to expand its quarry operations to the north side of County Road 91.

The board made its decision in June. Walker’s application was to excavate more than 44 million tonnes of material from the site over a 40-year period.

The board made some amendments to Walker’s application, including changes to proposed operating hours and increased buffers around a wetland area and a colony of American Hart’s Tongue Fern.

Walker’s plans also included the company taking ownership of a section of County Road 91, running between its existing quarry west of Duntroon, and the expansion on the north side of the road.

The board’s decision also required that prior to the start of shipping of product from the proposed quarry that the improvements to former County Road 91 and Sideroad 26/27 as contemplated by the Road Settlement Agreements with Clearview Township and Simcoe County be undertaken to the satisfaction of the Township of Clearview.

The board’s decision wasn’t unanimous, however, with one of the three panel members — Robert Wright — writing a dissenting viewpoint.

In his opinion, Wright didn’t believe aggregate extraction in the Escarpment Rural Area designation of the Niagara Escarpment Plan area is compatible with the natural environment.

“The majority decision in this matter sets a perilous course for increased development in the NEP area that is not compatible with the natural environment of the Niagara Escarpment and land in its vicinity,” Wright wrote.

Wright pointed out the application only meets one requirement of the ‘three-part’ NEP amendment test, and the conclusion of his colleagues fails to “analyze crucial aspects of this development proposal through the lens of the statutory provisions of the (Niagara Escarpment Plan Development Act) and the policies of the NEP.”

He wrote that the proposed amendment to the NEP to permit the quarry is “not justified, and is not consistent with other relevant provincial policies.”

He also sided with the opinion expressed by Environmental Commissioner of Ontario, Gord Miller, who testified that the use of the property as a quarry could not realistically be called an ‘interim use’.

In a report to the commission prepared by the Lisa Grbinicek, a senior strategic advisor to the NEC, and presented on Thursday, concern was expressed “to the manner in which the (Niagara Escarpment Plan) provisions have been regarded by the (joint board).

“The concern and issue is not with respect to the (board) preferring the evidence and opinions of the witnesses for the applicant, but rather that in staff’s opinion, the (board) appears to disregard key terms and objectives of the NEP related to the protection of natural features and areas on the basis that they are not defined… and defer to the Provincial Policy Statement in making their findings,” Grbinicek wrote.

The operation of the quarry would require an amendment to the Niagara Escarpment Plan to change the designation of the extraction area from Escarpment Rural to Mineral Resource Extraction, and to permit water management and mitigation on portions of the site designated as Escarpment Natural Area, Escarpment Protection Area, and Escarpment Rural Area.

A development permit would also be required from the commission.

“(Thursday’s) vote was a milestone; it’s evident that the commission stands firmly behind the NEP,” Clearview Community Coalition chair Janet Gilham wrote in a news release issued Monday.

Clearview Community Coalition was one of the parties to the Joint Board hearings, in opposition to Walker’s application.

Gilham said the coalition is now determining how to support the NEC’s application for a judicial review of the decision.

Environmental Defence also applauded the NEC’s decision.

“Ontarians don’t want a mega-quarry that puts our land, water and wildlife at risk, for the benefit of few.” said Dr. Rick Smith, Executive Director of Environmental Defence. “I’m happy to see that the NEC recognizes this quarry in this location is a mistake.