Rehabilitation of Ontario's

Aggregate Pits and Quarries:

Who Will Pay for It?

 

Application for Review under Section 61,

Ontario Environmental Bill of Rights,

of the Aggregate Resources Act

With Respect to Rehabilitation of

Ontarios Pits and Quarries

 

 

Submitted to Environmental Commissioner of Ontario

1075 Bay Street

Suite 605

Toronto ON M5S 2B1

 

Submitted by Richard C. Holt and Edward S. James

October 14, 2003

 

 

 

Summary

 

This application requests a Review of the Aggregate Resources Act, whose Purpose requires "rehabilitation of land from which aggregate has been excavated". By means of various evidence, notably, that less than half of land disturbed in aggregate operations in a decade have been rehabilitated, it is argued that the intention of the Act is not being accomplished. It is requested that the Act be enforced and modified to provide rehabilitation in an open and accountable manner.

 

 

 

Part 1 of Application for Review.

 

This part of the application lists the parts of the Aggregate Resources Act for which a review is requested.

 

We request a Review of an existing Act, namely, the Aggregate Resources Act (ARA). In particular, we request a review of

as detailed below.

 

The ARA gives its purposes in its Section 2 as follows:

 

Aggregate Resources Act, Purposes of Act

2. The purposes of this Act are,

(a) to provide for the management of the aggregate resources of Ontario;

(b) to control and regulate aggregate operations on Crown and private lands;

(c) to require the rehabilitation of land from which aggregate has been excavated; and

(d) to minimize adverse impact on the environment in respect of aggregate operations. R.S.O. 1990, c. A.8, s. 2.

We particularly request review of Section 2(c) which deals with rehabilitation.

We request review of ARA Section 48, which reads as follows:

 

Aggregate Resources Act, Section 48

Duty to rehabilitate site

48. (1) Every licensee and every permittee shall perform progressive rehabilitation and final rehabilitation on the site in accordance with this Act, the regulations, the site plan and the conditions of the licence or permit to the satisfaction of the Minister. R.S.O. 1990, c. A.8, s. 48 (1).

Minister's order requiring rehabilitation

(2) On being satisfied that a person is not performing or did not perform adequate progressive rehabilitation or final rehabilitation on the site in accordance with subsection (1), the Minister may order the person to perform, within a specified period of time, such progressive rehabilitation or final rehabilitation as the Minister considers necessary, and the person shall comply with the order. 2000, c. 26, Sched. L, s. 1 (5).

 

 

We request review of ARA Section 6.1, which begins with a description of the Aggregate Resources Trust (the Trust) as follows:

 

Aggregate Resources Trust

6.1 (1) The Minister shall establish in writing a trust to be known in English as the Aggregate Resources Trust and in French as Fonds des ressources en agrigats. 1996, c. 30, s. 4.

Terms of Trust

(2)The Trust shall provide for the following matters, on such terms and conditions as may be specified by the Minister:

1. The rehabilitation of land for which a licence or permit has been revoked and for which final rehabilitation has not been completed.

2. The rehabilitation of abandoned pits and quarries, including surveys and studies respecting their location and condition.

3. Research on aggregate resource management, including rehabilitation.

4. Payments to the Crown in right of Ontario and to municipalities in accordance with the regulations.

5. Such other matters as may be specified by the Minister. 1996, c. 30, s. 4; 2002, c. 17, Sched. F, Table.

Trustee

(3) The Minister shall appoint a person who is not employed by the Crown as trustee of the Trust and may provide for the trustee's remuneration from the funds of the trust. 1996, c. 30, s. 4.

 

 

 

As a part of our request for review of ARA Section 6.1, we request review of the part of the ARA regarding rehabilitation deposits, namely Section 6.1 (11) and 6.1(12), as follows:

 

 

Transfer from former rehabilitation security accounts [Section6.1]

(11) On the day section 4 of the Aggregate and Petroleum Resources Statute Law Amendment Act, 1996 comes into force, all money held in an account described in section 52 of this Act, as it read immediately before the coming into force of section 4, is transferred to the Trust. 1996, c. 30, s. 4.

Refund

(12) On or before the first anniversary of the coming into force of section 4 of the Aggregate and Petroleum Resources Statute Law Amendment Act, 1996 , the Trust shall refund to the person in whose name the account was held such amount as the Minister may direct. 1996, c. 30, s. 4.

 

 

 

Part 2 of Application for Review

 

This part of the application gives the reasons for this request for Review, in particular the need to protect the environment.

 

We believe that the Ministry of Natural Resources (MNR) should undertake our Review to protect the environment because of the reasons listed here.

 

a) The intention of the Aggregate Resources Act is clear, in both its Purposes and Section 48, in requiring that rehabilitation be performed progressively by every licensee and every permittee, and that, as well, this rehabilitation must be finalized.

 

b) The definitive statistics for Ontario aggregates (yearly Mineral Aggregates in Ontario Statistical Updates) indicate that over the last ten years, 1992-2001, over half of land disturbed in licensed pits and quarries has not being rehabilitated. The statistics indicate that during the decade 1992-2001, there were 5,948 hectares in pits and quarries that were disturbed (plant life removed, soil removed, overburden removed, etc.) but not rehabilitated. (A hectare is roughly two acres, and is roughly the size of two football fields.) This constitutes unrepaired environmental damage during that decade to an area roughly equal to 10,000 football fields. The obvious projection of these statistics is that each decade in future, about 6,000 more hectares will be disturbed and not rehabilitated. This is a clear violation of the intent of the law (ARA Purposes and ARA Section 48). This constitutes clear, continuing and extensive damage to the environment.

 

c) The Aggregate Resources Act, with its purpose to require the rehabilitation of land from which aggregate has been excavated should be reviewed to see why this purpose is not being met. ARA Section 48 should be reviewed to determine why its intention to provide rehabilitation is not being met. ARA Section 48 should be amended so it becomes effective in guaranteeing that rehabilitation actually takes place.

 

d) Appropriate regulations, policies and instruments under Section 48 should be revised, instituted and enforced by the MNR to guarantee that the clear intention of accomplishing progressive and final rehabilitation of ARA (Purposes and Section 48) is carried out.

 

e) The MNR Statement of Environmental Values states that:

 

Anticipating and preventing negative environmental impacts before undertaking new activities is less costly and more effective than correcting or curing environmental problems.

 

This implies that Section 48 requires amendment to prevent current and new pits/quarries from increasing the current huge deficit of unrehabilitated pit/quarry hectareage. Rehabilitating the disturbed 5,948 hectares from 1992-2001 will be very costly. According to the year 2001 Annual Report of Ontario Management of Abandoned Aggregate Properties (MAAP), the cost per hectare to carry out pit rehabilitation averages $12,495. At that cost per hectare, the rehabilitation of the 5,948 hectares will cost $74,320,260. When will this rehabilitation take place? Who will pay for it? Will this rate of deficit continue in the future?

 

f) The MNR Statement of Environmental Values states that:

 

Partnership arrangements in natural resource decision making and management must and will be significantly increased so that the public shares more fully and directly in the benefits and responsibilities of resource stewardship.

 

It also states that

 

The Ministry also recognizes the need for openness and consultation in decision-making which may significantly affect the environment. 

 

What actually happened in pit/quarry decision making and management is the following. The MNR turned over the responsibility for collection of pit/quarry statistics and levies to a company (TOARC) wholly owned by the Aggregate Producers Association of Ontario (APAO), which is Ontarios registered gravel lobbyist association. This company is called the Ontario Aggregates Resource Corporation (TOARC). This action was apparently taken in accordance with ARA Section 6, regarding the Aggregate Resources Trust. This action violates the Environmental Value of openness, by hiding key resource management from the public and by placing this management machinery in the hands of a party (the APAO) with a profound conflict of interest, as the APAO has as its published goals to influence legislation, regulation and policy as well as political fundraising. This implies that ARA Section 6 should be amended to guarantee openness and to guarantee that the public shares in the benefits and responsibilities of stewardship. This amendment to ARA Section 6 should limit the APAO, as a lobbying organization, to a modest and circumscribed role, with the public and with environmental organizations fully involved in any decision making, management and consultation wherever APAO plays a role.

 

The APAO by means of its wholly owned sub-company, TOARC, has appointed APAO itself to control and spent government money from the Aggregate Resources Trust to rehabilitate abandoned pits/quarries. This operation within APAO is called Management of Abandoned Aggregate Properties (MAAP). MAAP is not accountable to the public. For example, it is not known to the public how MAAP selects sites for rehabilitation. Section 6 should be amended and/or re-interpreted to make MAAP management, decision-making and control open to the public and to remove its control from APAO.

 

g) Rehabilitation security deposits are used to guarantee that a pit is actually rehabilitated. The operator is rewarded with the return of the deposit when rehabilitation occurs. ARA Section 6 (11) and (12) put into motion the dismantling of this mechanism for guaranteeing that rehabilitation takes place. According to the 1999 Annual Report of TOARC (a company which is wholly owned by APAO aand whose sole function is to manage the Aggregate Resources Trust), the Ontario government instructed TOARC to liquidate these deposits and to give the funds (roughly $49,000,000) to the operators. Once this occurred, there was little incentive for operators to rehabilitate their pits and quarries. Therefore, ARA Section (11) and (12) (or amendments to the ARA) should re-institute an effective system of rewards and punishments so that rehabilitation actually occurs and so that the environment will not continue to be left in a costly, disturbed and damaged state. This amendment, with corresponding regulations, policies and guidelines, should create a clearly stated, easy-to-enforce mechanism for guaranteeing rehabilitation.

 

 

Part 3 of Application for Review.

 

This part of the application gives evidence to support this Request for Review.

 

Background

 

To understand how rehabilitation is and is not done in Ontario, it is helpful to understand the background, in terms of

 

Consumption of aggregates. The aggregate industry is a large industry in Ontario, each year excavating approximately 150 million tonnes of sand and gravel. (A tonne, or a metric ton, sometimes pronounced tone, is close to a US ton, i.e., 0.907 metric tonnes is equal to one US ton.) Ms. Carol Hochu, President of APAO, describes this volume of aggregates as follows, If I could just paint a picture for you about what 150 million tonnes means, picture an area bounded by College Avenue, that is, the front of the Queen's Park building, west over to Spadina, east over to Yonge and down to the waterfront. If you dug 60 feet into the ground in that whole area bounded by those roads, that represents about 150 million tonnes of aggregate product." [Ontario Hansard, February 16, 2000] In other words, each year, Ontario digs enough aggregates to bury much of downtown Toronto under 60 feet of sand and gravel.

 

Over half of this 150 tonnes goes into roads, such as the 407, which requires about 30 tonnes per kilometer. The next major use is house construction; in Ontario a new house consumes about 440 tonnes of gravel.

 

According to APAO, on a per capita basis, Ontario consumes about 15 tonnes per year. This can be compared with 4 tonnes per year for UK and 9 tonnes per year for US. (See Figure 1.) These figures suggest that Ontario is a prolific consumer of aggregates.

 

Aggregate haulage levies. The Ontario government charges a levy of 6 cents per tonne for hauling aggregates (independent of length of haulage trip). By comparison, the UK government charges a haulage levy of 1.6 pounds, which is roughly 4.00 Canadian dollars, as shown in Figure 2.

 

Figure 1. Yearly Per Capita Consumption of Aggregates

 

Figure 2. Haulage Levies in UK and Ontario

 

Policies on aggregate consumption. The UK Parliamentary explanation of their levy states that, The aggregates levy seeks to provide such an incentive by imposing on those involved in the production of aggregates a financial penalty which reflects the damage this activity causes to the local environment. The types of environmental damage caused by quarrying were described to us as dust, dirt and noise, air pollution and loss of landscape, biodiversity and amenity. This sustainable approach to the consumption of non-renewable resources helps explain why consumption in UK is relatively modest. The Ontario Provincial Policy Statement states that As much of the mineral aggregate resources as is realistically possible will be made available to supply mineral resource needs, as close to markets as possible. This Policy helps explain Ontarios high rate of consumption of aggregates.

 

Stakeholders in the business of aggregates

 

The public as stakeholders in the business of aggregates. The public should be considered the foremost of the stakeholders in the business of aggregates. The public and its concern about aggregates and the environment is represented most notably by organizations such as:

7       Sierra Legal Defence Fund, 30 St. Patrick Street, Suite 900, Toronto, ON M5T 3A3, Tel: (416) 368-7533, E-mail: sldfon@sierralegal.org

7       Canadian Environmental Law Association, 130 Spadina Avenue, Suite 301, Toronto, ON M5V 2L4, (416) 960-9392, E-mail: intake@cela.ca

If the MNR chooses to contact parties regarding this application (under Section 70 of the Environmental Bill of Rights), the above parties should be among the most appropriate to contact.

 

The public is also represented in aggregate matters by a number of Citizens Coalitions, for example:

 

 

If the MNR chooses to contact parties regarding this application (under Section 70 of the Environmental Bill of Rights), the above parties should be among those contacted.

 

The government as a stakeholder in the business of aggregates. The Ontario Ministry of Natural Resources is responsibly for enforcing the Aggregate Resources Act. As such, it responsible for ensuring the rehabilitation is carried out as required by the ARA. The MNR both enforces the Act and acts as an official partner with the aggregate industry as represented by their registered lobbyist organization, the APAO. The government is also an important stakeholder in that it consumes over 50% of the aggregates used in Ontario. As the number one consumer of aggregates, it has some responsibility of ensuring that the industry appropriately protects the environment, obeys the laws of the Province, and carries out rehabilitation.

 

Aggregate producers as stakeholders in the business of aggregates. The Aggregate Producers Association of Ontario (APAO) has as its objective "to be the single voice of the aggregate industry with government to positively influence legislation, regulation and policy to the benefit of the citizens of Ontario, as well as the industry" [APAO web page]. The records of the Ontario Office of the Integrity Commissioner show that APAO is a registered Ontario lobbyist group. APAO represents about 90 aggregate producers.

 

The Economist Magazine [March 8-14, 2003] states "Lobbying groups often try to disguise a financial self interest by clumsily dressing up their arguments in the guise of concern for the public."

 

APAO is a partner with the Ontario Ministry of Natural Resources. APAO wholly owns the Ontario Aggregates Resource Corporation (TOARC), whose sole purpose is the manage and control the Aggregate Resources Trust, which consists solely of government (MNR) funds. Since its inception, most of TOARC directors have been, at one time or another, directors of APAO. APAOs TOARC collects haulage levies for the government, and collects Ontario statistics (yearly Mineral Aggregates in Ontario Statistical Updates) for the government on the aggregates industry. TOARC supports, with government funds, the group within APAO known as MAAP to rehabilitate abandoned pits/quarries. APAO and TOARC are not accountable to the public. The labyrinthine interconnections of APAO, MNR, TOARC and MAAP, involving potential influence and government funds, are rife with potential conflicts of interest. (See Figure 3.)

 


[Figure 3 may be missing due to technical problems.]

Figure 3. Interconnection of APAO, TOARC, MAAP and MNR. Dollar figures from year 1999

 

This interconnection constitutes an interesting intermixing of government funds, politics, lobbying and influence, as illustrated this quotation from the Fall 2002 APAO Newsletter, The City of Ottawa received one of the largest cheques presented to a municipality, on September 17th by David Sterrett, President of The Ontario Aggregate Resources Corporation (TOARC), at a cheque presentation ceremony held at the Whyte Pit in Carp. The occasion was hosted by the Eastern Regional Committee of the Aggregate Producers Association of Ontario (APAO). The cheque for $461,805 represents the municipal portion of aggregate licence and permit fees collected from aggregate producers in the City of Ottawa this past year. Here is another example of this intermixing, Ontario Premier Ernie Eves and members of his cabinet and caucus attended a fundraising reception at the Sutton Place Hotel in Toronto on June 5th held by the Aggregate Producers Association of Ontario (APAO). Bill Galloway, General Manager at Dufferin Aggregates and Chairman of the APAO Board of Directors, welcomed the Honourable Ernie Eves and his cabinet who mingled with 50 APAO members and staff. Due to the continued support from the Progressive Conservatives, this event just keeps getting bigger and better, and for that, we thank you, said Galloway. Eves commended the APAO and the industry for advancing the standards of the industry and showing environmental responsibility in the communities in which they operate. He thanked the Association for its fundraising efforts and encouraged the continuation of positive relationships between government and the aggregate industry. He was especially impressed by the rehabilitation work conducted by MAAP for the industry and applauded the energy and dedication of MAAP and APAO staff members he had just met at the reception. [APAO, June 17, 2002, http://www.apao.com/news.htm]

 

 

Part 3 of Application for Review

 

This part of the application gives a summary of the evidence that supports our Application for Review.

 

5,948 Hectares Not Rehabilitated

 

The primary evidence that rehabilitation is not being effectively carried out in Ontario is the record of rehabilitation, as given in the yearly Mineral Aggregates in Ontario Statistical Update. These were published each year up to and including 1997 by the Ontario Ministry of Natural Resources, and since then by APAOs sub-company TOARC. According to these statistics, in the decade 1992-2001 (at the date of this writing, statistics for 2002 were not available), 5,948 hectares were disturbed (plant life removed, soil removed, overburden removed, etc.) but not rehabilitated. This is about 10,000 football fields of environmental disturbance. The yearly accumulation in this environmental damage is shown in more detail in Figure 4.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Figure 4. Cumulative Area Disturbed but Not Rehabiltated in Licenced Ontario Aggregate Pits & Quarries Since 1992

 

Year

New Disturbed

New Rehab

New Disturbed, No Rehab

Disturbed No Rehab Since 1992

1992

1312

495

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817

1993

1296

549

747

1564

1994

1761

394

1367

2931

1995

1133

327

806

3737

1996

748

395

353

4090

1997

644

233

411

4501

1998

1021

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424

4925

1999

819

586

233

5158

2000

841

468

373

5531

2001

986

569

417

5948

Overall

10561

4613

5948

5948

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Figure 5. Rehabilitation Statistics, Based on Mineral Aggregates in Ontario. All areas in hectares.

 

Figure 5 gives statistics from 1992-2001 from the Mineral Aggregates in Ontario, from their yearly table entitled Rehabilitation of Licenced Aggregate Sites. That data constitutes columns 1 to 3 of Figure 5. The spread sheet for Figure 5 computes the cumulative disturbances not rehabilitated and is the basis of Figure 4.

 

As can be seen in Figure 4, over the decade, for each two disturbed hectares, less than one has been rehabilitated.

 

This data indicates a profound lack of implementation of the purpose of the Aggregate Resources Act to require progressive rehabilitation.

 

According to the year 2001 Annual Report of Ontario Management of Abandoned Aggregate Properties (MAAP), the cost per hectare to carry out pit rehabilitation averages $12,495. At that cost per hectare, the rehabilitation of the 5,948 hectares of disturbed area during 1992-2001, will be $74,320,260. This is a serious debt that either the public or the aggregate industry must eventually pay. The statistics indicate that this debt continues to grow at an average rate of 594.8 hectares (about 600 football fields) each year or $7,432,026 each year.

 

It is such debt and environmental damage that the Aggregate Resources Act intended not to allow to happen.

 

Rehabilitation by APAO/MAAP/TOARC

 

APAOs MAAP program, financed from government funds, has as a mandate to rehabilitate pits and quarries that were abandoned before January 1, 1990. Its annual reports and its published material emphasize its success in this rehabilitation. MAAP is featured in a video entitled "New Life in Old Places" produced by TOARC (government) funds. MAAPs rehabilitations are featured in APAOs press releases and news letters. The appearance from MAAP and APAO is that rehabilitation in Ontario is going well.

 

MAAPs year 2001 Annual Report lists the statistics for the last ten years (1992-2001) of its rehabilitation program, summarized as follows:

 

In 1991 and 1992, the [Aggregate Resources] Fund completed a province-wide inventory of over 6,500 abandoned sites, ranging in size from 100 m2 to over 50 hectares, [in Rock to Roads Magazine, 1999, by Moreen Miller, Environment and Resources Manager for the Aggregate Producers Association of Ontario, http://rocktoroad.com/maap.html], so it appears that in Ontario we have

(Later data from MAAP indicate that this figure may be larger, perhaps 6,700.) This number does not include pits and quarries that have been abandoned or had their licenses or permits revoked since January 1, 1990.

 

Based on these figures, we can estimate the time and cost to rehabilitate the pits and quarries that were abandoned before January 1, 1990.

These figures indicate a debt, namely a cost still to be paid for unrehabilitated gravel extraction in Ontario. Undoubtedly, many or most of these abandoned pits will never be explicitly rehabilitated, and or to put it optimistically, will naturally rehabilitate themselves.

 

The number of revoked licenses and permits and the number of abandoned pits and quarries continues to grow. The figures documenting this further debt since January 1, 1990 are difficult to obtain. Two pieces of information on these more recently abandoned pits and quarries are as follows:

1)     The 2001 TOARC Annual Report states that, Since creation of the Trust, the Ministry of Natural Resources has revoked approximately 43 licenses and 37 permits. This constitutes another 80 abandoned sites after the 1991-1992 inventory and after the creation of the Trust, which apparently occured in June 1997. It has not been possible to determine how many more sites were abandoned or revoked between January 1, 1990 and the creation of the Trust. When TOARC was requested to give details about these 80 sites, they refused, stating that this was proprietary information.

2)     The TOARC Annual Reports for 1997-2001 indicate that TOARC's Rehabilitation Fund paid for rehabilitation of a total of two pits with revoked licenses, namely, the Timber Brothers Pit in Durham Region at a cost of over $300,000 and the Gord Ellis Pit in Peterborough County at a cost of about $20,000. This indicates that only two of the 80 sites were rehabilitated. This raises the questions: Why was over $300,000 paid to rehabilitate a single pit, and why were only two pits rehabilitated? In the meantime, this same Rehabilitation Fund is used by TOARC primarily to pay TOARC salaries and management fees, at a rate of about $400,000 per year.

These figures suggest that MNR and TOARC have not rehabilitated a significant fraction of the pits and quarries abandoned since January 1, 1990. It appears that not only is TOARC failing to carry out its responsibility to rehabilitate these pits and quarries, but also that the information about this is being kept from the public. The methods and processes used by TOARC to carry out rehabilitation are not visible and therefore are questionable.

 

MAAPs rehabilitation of 13.3 pits per year is to be applauded. However, in the bigger scheme of things, this work pales when juxtaposed with the number of pits remaining to be rehabilitated, and the rapidly accumulating debt of disturbed hectares and abandoned sites each year. There is the danger that MAAPs accomplishment serves as window dressing, masking from the public the true state of rehabilitation in Ontario, and allowing the industry to avoid paying its debts. The fact that key information about rehabilitation is not available to the public makes this situation highly questionable. The fact that MAAP and TOARC are not accountable to the public make this danger particularly worrisome.

 

In the meantime, MAAPs and TOARC's choice of sites to rehabilitate has clear possibilities for politic favouring, and is not visible to the public.

 

This Request for Review seeks to open MAAP and TOARC to public accountability in such as way as to make clear whether these operations are serving the environment and the public in an appropriate way. It seeks amendments to the ARA that would guarantee that government funding, as consumed by MAAP, currently under APAO control, leads to progressive and final rehabilitation as the ARA requires, in an open and accountable manner with full participation of public and environment stakeholders.

 

 

 

 

Acknowledgement of Problems in Rehabilitation

 

The problem with rehabilitation of pits/quarries in Ontario is understood by key persons in MNR and in APAO, as illustrated by these two quotations.

 

The legacies and rehabilitation practices of the past provide an atmosphere of distrust with the general public. [Ray Pichette, Ontario Ministry of Natural Resources, 1995]

 

 

The acreage of land disturbed by aggregate extraction is still increasing, because the rate of disturbance is significantly faster than the rate at which property is being rehabilitated. [Bill Galloway, Chairman of the Board of APAO, in Nov 2002 Aggregates & Roadbuilding]

 

Process of Review

 

It is requested that the Review, if it is carried out by MNR, should be carried out in an open and accountable manner. Any involvement of the APAO should be balanced by involvement by the public and environmental organizations.

 

 

Conclusion

 

This Application for Review, submitted to the Environmental Commissioner of Ontario, seeks improvements in the Aggregate Resources Act and its enforcement, in order to provide pit/quarry rehabilitation, as the Act requires. As background, we surveyed the business of aggregates in Ontario. As evidence, we presented statistics, including showing that on average over the last decade, less that half of the land disturbed for pits/quarries is rehabilitated. It is our hope that MNR will carry out a Review leading to consistent and effective rehabilitation of Ontarios gravel and stone pits and quarries in an open and accountable manner.