January 31, 2011
Returning from their deliberations, the Chair explains that the hearing will proceed with the traditional mode for this hearing. Nelson must call its case, and any witnesses called in reply must be limited to replying (i.e. they cannot raise new issues).
To clarify, Mr. Northey stood to note that, if we were in court, reply would be restricted to issues that the Party could not reasonably have anticipated.
The Chair clarified: The Board is not going to instruct Nelson on what case they should or should not call. The Board is of the view that all the Parties, being represented by experienced counsel, understand the tests that Nelson must meet. All replies will be restricted to evidence that could not have been foreseen. Therefore, the Board is leaving this to Nelson to decide what to submit in reply, but caution that all replies will be limited to that strict interpretation.
The hearing is now adjourned to tomorrow, when Nelson's air impacts witness will begin. Waterkeeper will return following air and planning, when ecology evidence is heard.
With respect to scheduling, Mr. Kahn stood to indicate that tomorrow, Nelson's witness on air will be examined in chief (direct examination). He expects this to take less than two days. Mr. Kahn then suggested shifting the order of witnesses, since his planning witness is leaving on vacation in February. Additionally, Mr. Hilditch, the ecologist, has been ill and could use more time before testifying. The Board agreed with shifting the order to accommodate that change.
Mr. Northey has raised an issue related to a new witness that Nelson has scheduled to respond to one of Burlington's witnesses. The subject is air, and Burlington's witness address the health impacts of air pollution from quarries. Mr. Kahn explained to the Board that his original case did not include health impacts, so he had to call a witness in reply.
Mr. Northey submits that Nelson has the onus of showing there will be no adverse health impacts from the quarry expansion. Since a planning report from 2004 relied on by Nelson states there will be no health impacts, Nelson must prove that assertion. Mr. Northey argues that, if Nelson wants to make that point, they must address it directly, rather than just in reply to Burlington's witness on the matter.
The Panel is taking a short break to consider the arguments.
After the break, Mr. Kahn said he had no further questions for Mr. Hanratty.
Heather Gibbs, a member of the Joint Board, began asking Mr. Hanratty some questions herself. First, she asked him to address whether wells for future residences are covered by the AMP, rather than just existing wells. He indicated that they are.
Ms. Gibbs then asked about the proposed "Well Response Program". The AMP lists four potential options if a well goes dry. Ms. Gibbs asked if they are listed in order of preference. Mr. Hanratty replied that, no, the options would be considered and different options might be appropriate for different wells. That said, he noted, when there are problems with old wells, it is sometimes easiest just to dig a new well. For small properties, a cistern might be more appropriate than additional wells, since there is not likely enough land area to get better luck with a new well (i.e. a new well would have to close to the well that went dry and thus would likely have the same problem). He says that the choice would be made in consultations between Nelson and the landowner. The MOE would only be involved if an agreement couldn't be reached.
With respect to communication between Nelson and homeowners with regard to problematic wells, Mr. Hanratty noted that homeowners will get annual updates or summaries of the status of their well water.
The Chair then asked Mr. Hanratty where it is noted that it is desirable for follow-up program data to be communicated to homeowners, since this is not in the AMP. Mr. Hanratty said this would be more of an "individual communication" between Nelson and the homeowners. It would be more on the request of the owner, rather than something set out for all wells, or all homeowners.
Mr. Northey asks, in follow-up, to clarify whether Mr. Hanratty was indicating that Golder would be doing the well follow-up. He clarified that no, he meant Nelson would be doing the noted follow-up.
That ends Mr. Hanratty's testimony.
Mr. Edmondson made good use of the various site plans and maps showing elevation levels in his questions for Mr. Hanratty. Of particular interest is what the maps show of grading around the wetlands that indicate where water will flow into and out of them. Further, there are maps in evidence showing the six phases of extraction Nelson would like to undertake. For each phase, features like ponds and silt fences are shown. In this way, the images show a combination of data collected or estimated based on aerial photos, and plans for future changes to the site, like ponds and berms.
Mr. Edmondson concluded his questions. We are taking a 15 minute break before Mr. Kahn concludes the questioning of Mr. Hanratty.
Asking about a well that is listed as a source of water to fill the wetlands should the stormwater pond not be able to provide water for pumping, Mr. Edmondson tries to establish why no discharge standards for that well water are included. Mr. Hanratty says that would be a matter for the MOE to consider if Nelson applies for a Certificate of Approval to operate the well. He says it is not an issue for the AMP, so no discharge standards or criteria have been considered to this point.
Early in the pre-hearing stages of this proceeding, the Board established that the licences and approvals Nelson will need from the MOE to operate a new quarry are outside the scope of this hearing. Therefore, if the quarry is approved here, Nelson will still have to apply for each of those approvals. They should be subject to public notice, comment, and the right to appeal under the Environmental Bill of Rights.
Mr. Edmondson asks Mr. Hanratty about whether grouting provisions exist in the AMP, and if so, whether it says that grouting has to be demonstrated to work before extraction happens. Grouting, or the installation of a grout curtain, is a measure taken in some quarries to prevent groundwater from flowing into the quarry, instead of, or to augment, pumping. Grouting may not be effective where the quarry is located in karst.
After lunch, Bob Edmondson began questioning Mr. Hanratty for Conservation Halton. Noting that there is a plan in the AMP to carry out a variety of pilot versions of programs before extraction begins. For the surface water management system, Mr. Hanratty says that instead of a pilot program, the system will be fully implemented and working prior to extraction. Passive measures, like lining and some actions with respect to the wetlands, Mr. Hanratty says would be done (if needed) in consultation with the agencies, mostly after extraction is complete.
Mr. Ratcliffe has finished questioning Mr. Hanratty. Conservation Halton will be cross-examining him after the lunch break.
Mr. Ratcliffe, for the Niagara Escarpment Commission, is questioning Mr. Hanratty next. He confirms that, if you count the time for extraction and the time for the quarry to fill with water, the process will take approximately 55 or 60 years. He notes that Nelson commits to monitoring groundwater for two years longer than this period. Mr. Ratcliffe asks, in light of the long period of time being considered, whether climate change has been worked into the models or planning in the AMP.
Mr. Hanratty points to page 38 of the AMP that states that monitoring wetlands outside the predicted impact area is proposed based on potential climate related changes.
Mr. Ratcliffe notes that there does not seem to be a conflict resolution process in the AMP if there is a dispute regarding its contents. Mr. Hanratty says that, with respect to wells, Nelson plans to defer to the MOE if any conflicts arise. With respect to monitoring of other water levels, etc., he says that any instances where levels go into the "yellow zone" would be reported to the relevant agency. Then Nelson would have to resolve the problem by returning the levels to the "green zone". He says he doesn't understand why Mr. Ratcliffe is asking about a conflict resolution plan, when that is what would happen.
Mr. Ratcliffe clarifies that he is asking first whether such a provision exists and says it sounds like the witness has says it does not. Mr. Hanratty says that to the contrary, his answer was that there are mechanisms in place for both wetlands and wells. If the levels drop, it goes to the MOE. Mr. Ratcliffe asks, specifically, how does that provide a tool for a local resident concerned about the water level in their well. Mr. Hanratty answers that, where there are targets established, the MNR and other agencies will be involved. He says if Nelson is not meeting the target levels, they will have to fix the problem. He says the targets are black and white - you either meet the target or you don't, so there is no instance where there would be a conflict over whether or not Nelson was meeting a target in the AMP.
Mr. Ratcliffe's question is very relevant to a group like PERL, which could find itself in a position, if the quarry is built, where it contends that there is an impact contrary to the AMP, but Nelson does not recognize or agree with that contention. In such a case, an established conflict-resolution procedure could be used. This will be an interesting point to follow throughout this hearing.
Mr. Northey has introduced copies of documents related to the AMP developed for another Burlington quarry: the Hanson Brick Tremaine Quarry. He notes that Golder is referenced in the documents related to this other quarry, and asks Mr. Hanratty whether he, personally, had any regard to the Hanson Brick AMP. Mr. Hanratty says he did not. He indicates that Mr. McFarland, who we heard from earlier in this hearing, was likely involved in that AMP.
Mr. Northey asks whether Mr. Hanratty whether he had discussions with Mr. McFarland regarding the AMP or the AMP Agreement for the Hanson Brick quarry. Mr. Hanratty says that he does not recall any such discussions.
Mr. Northey concludes his questioning of Mr. Hanratty.
Mr. Northey has introduced an extract from a response provided by Nelson to the JART in January 2008. On page 56 of the document, in response to JART's statement that, "A legal AMP agreement will also be needed to formalize the commitments", Nelson states:
"A legal AMP agreement is unnecessary since the ARA license will ensure the legal fulfillment of the commitments outlined in the AMP, however, Nelson Aggregate Co. would be prepared to enter into such an agreement with the Region."
Mr. Hanratty testifies that Golder did not write that response and, as a science consultant, would not write such a policy/legal response on behalf of a client. He suggests the response may have come from Stantec, Savanta, or Nelson itself, as the Table of Contents attributes the AMP discussion to those authors.
After the break, Mr. Northey continued questioning Mr. Hanratty. Using maps, he has Mr. Hanratty confirm the location of monitoring wells on the Nelson site. Mr. Northey shows that, if extraction proceeds, the wells in the centre of the site will no longer exist (as the ground will be extracted). Instead, new wells in the wetland catchment areas will be installed. Mr. Hanratty tells the Board that these new wells will not be associated with target levels.
During the break, Roger Goulet shared an update on another PERL effort to protect Mt. Nemo. The group has applied to the Niagara Escarpment Commission: "to amend the Niagara Escarpment Plan (NEP) to re-designate approximately 82.3 ha, which is owned by Nelson Aggregates Co. (Nelson), from Escarpment Rural Area to Escarpment Natural Area and Protection Area". That would essentially preclude aggregate extraction on the land, since extraction requires a designation of "Mineral Resource Extraction Area". The group's application is on the NEC website.
Comments on PERL's application to the NEC were initially due on February 17th. The deadline has now been extended to May 9, 2011. The change is being attributed to the fact that the proposal has not yet been posted to the provincial Environmental Registry, where it must be posted for a minimum 30 days of public comment before a decision is made.
Roger Goulet of PERL has just arrived at the hearing. Roger has been a staple at this proceeding from the start. He takes notes, organizes the schedule for PERL, and generally keeps PERL's involvement moving smoothly, all as a volunteer. Roger has been an exceptional help to Waterkeeper, as he keeps us in the loop when we can't attend the hearing.
At this point, the Chair suggests that we take a quick morning break. After the break, Mr. Northey will continue to question Mr. Hanratty.
Mr. Northey asks Mr. Hanratty about the relationship between water levels and volume. As the target level for water height has been set by Nelson's experts at 70%, Mr. Northey asks what volume of water is represented by the 30% difference between the wetland being 100% full, and the 70% full target level. Mr. Hanratty tells Mr. Northey that is a surface water and ecology issue, so he has to ask Tom Hilditch, Nelson's ecology expert who is slated to testify before the Board next week.
The topic has moved to the interaction between wells and wetlands. Mr. Hanratty explains that if water level elevation is reduced in a wetland, flow that would otherwise go to downstream areas may have to be replaced by pumping. He tells Mr. Northey that the pumping would go directly into the downstream area that isn't meeting the target, rather than being added upstream and allowed to flow downstream like natural flows would have done. The the AMP sets out the process for deciding how to pump in response to lack of flow in wetland systems.
As a nice surprise, I arrived at the hearing today to find that Isabelle Harmer is here for PERL for the morning. Isabelle's inspiring committment to protecting Mt. Nemo was recently the subject of Waterkeeper's newsletter. As PERL's resources are stretched to maintain their participation in such a large and complex hearing, members like Isabelle take turns attending the hearing for the group.
In addition to Isabelle, a new volunteer from Burlington Green is attending today. Susan Fraser is here to help PERL by attending the hearing and taking notes. It is clear that this is a community that cares about its water resources and natural spaces.
Mr. Northey has introduced a historic draft version of the AMP, which was submitted to the City by Nelson. It includes drafts from 2006, 2007 and 2008 that address Local Private Wells, Ecology, and Water Resources and Ecological Features. Mr. Hanratty notes that he is familiar with parts of these documents, but was not an author.
Mr. Northey draws our attention to a table in the 2008 version of the AMP that shows average seasonal water table elevation, predicted drawdown, and climate correction, which are used to calculate the target level for water levels. Mr. Hanratty says this table is not included in the current AMP, but the same results can be calculated by subtracting target level from seasonal water level to get predicted drawdown. [i.e. if Seasonal Level - Drawdown = Target, then Seasonal - Target = Drawdown].
"Drawdown" refers to the effect of well pumping on surrounding groundwater. As water is pumped from a well, the surrounding groundwater is lowered, in a V or wide cone shape. See this diagram for an idea of what a cross-section showing well drawdown looks like.
Mr. Northey is asking Mr. Hanratty to explain how the "yellow zone" in the AMP is triggered. At this level, the AMP indicates that local wells will be affected.
Today begins with the continuation of cross-examination of Nelson's witness, David Hanratty. The focus is water, and the Adaptive Management Plan (AMP) for the site. Mr. Northey is questioning Mr. Hanratty on behalf of the City of Burlington.
Mr. Hanratty works for Golder Associates Ltd. He also serves as Chair of the Associate Members Committee of the Ontario Stone, Sand & Gravel Association and has written for Golder on the aggregate approvals process. He is contributing to the hearing on water issues, which at this moment, means answering Mr. Northey's questions about wells.
Mr. Northey asks Mr. Hanratty how the target levels for water in wells on the site were reached. Mr. Hanratty says they were based on the upper well to build in conservatism, so that Nelson would be able to respond early to any changes in water level.
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