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ENVIRONMENTAL REVIEW TRIBUNAL LACKS JURISDICTION

LEAVE TO APPEAL APPLICATION BY FORCE CANNOT BE CONSIDERED

September 21, 2008:

The Environmental Review Tribunal has now issued a decision indicating that it cannot review the application for Leave to Appeal filed by Friends of Rural Communities and the Environment (FORCE) on August 28, 2008 due to lack of jurisdiction by the Tribunal.

FORCE was seeking leave to appeal a Permit to Take Water (PTTW) issued by the Ministry of the Environment (MOE) to St Marys CBM on July 8, 2008. The PTTW was issued to allow St Marys to test its theoretical and unproven groundwater recirculation system (GRS) as a way to manage the unacceptable impacts to area wells, wetlands and surface waters from its proposed Flamborough quarry. The PTTW was issued for 357 days, or 8 days short of one year, which brought into question the permit's "class". This determines whether the permit could be appealed and whether the ERT has jurisdiction to hear the merits of the appeal.

Our communities thank the Tribunal for its consideration about whether it could assume jurisdiction in this case. We are obviously disappointed that the full arguments of our appeal case could not be considered due to what we view as a technicality. This is especially true given the outstanding policy and scientific issues related to the permit itself and given the importance of this issue to our communities, the Greenbelt, and source protection planning. We knew from the outset, however, that the permit's duration created a significant jurisdictional challenge."

FORCE filed the Notice of Application for Leave to Appeal a Permit to Take Water (PTTW) issued by the Ministry of the Environment (MOE) to St Marys CBM to the Environmental Review Tribunal (ERT) on July 18, 2008 and the balance of its submission on July 22, 2008. The ERT indicated in correspondence dated July 18 that it was willing to consider its jurisdiction of the matter. The Tribunal invited the parties: FORCE, St Marys CBM and the MOE to make submissions by July 25 and July 30 respectively. FORCE was afforded the opportunity of reply by Aug 1. The Tribunal then reviewed the submissions before making its determination on jurisdiction.

The PTTW issued in support of the GRS testing is the first significant regulatory decision made in regards to this proposed quarry. Given the tragic events of Walkerton, decisions taken about drinking water must be scrutinized to the highest degree. St Marys and our government regulators, at all levels, need to know that our communities are prepared to use all legal means necessary to ensure that such scrutiny occurs in order to protect our drinking water and our rights. One positive note arising from the decision is that it documents important future commitments, reflecting undertakings made in St Marys and MOE's submissions, concerning future tests and public participation. Specifically, if the tests do not show that the GRS option is feasible, no further water taking will result, absent a new design and new approval process. If the tests show the GRS option is feasible, a longer term PTTW will be sought. The Director has also promised to facilitate further public participation in the decision making process related to this undertaking where further approvals are sought from his office. Our communities will continue to intervene at strategic decision points. We will make professional and substantive submissions in consistent opposition to this proposed quarry, right through to any future Ontario Municipal Board or Consolidated Hearings Board stage.

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St Marys Cement CBM - Permit to Take Water (PTTW) Application

July 8, 2008:

The Ministry of the Environment (MOE) has now issued a PTTW to St Marys. The permit allows a series of phased tests relating to the proposed Flamborough quarry. The tests allow the company to pump large volumes of water out of the ground in order to better understand the impact the proposed quarry excavation might have on the watershed and would test the unproven and theoretical groundwater recirculation system being proposed to mitigate those unacceptable negative impacts.

FORCE is currently evaluating legal options on behalf of our communities with our lawyers. Our experts believe that there are legitimate policy and scientific questions still outstanding that should be answered before testing is allowed to begin. FORCE signalled its intention to seek leave to appeal in order to give notice to St Marys and their consultants not to proceed with the testing until possible appeals are considered. Taking any actions would prejudice possible legal actions, would not respect our communities' right to decide our response, and would further demonstrate that St Marys is not the good neighbour it claims to be.

Our communities' ability to challenge the permit has a hurdle. The permit has been issued for less than one year. The posting with the permit on the Environmental Bill of Rights Registry states that because the permit is being issued for less than one year, there is no right of appeal. St Marys original application spoke to testing for 5 weeks (35 days). MOE has issued a permit for 356 days - 9 days short of one year. The potential environmental impact of the test phases and the flawed test design remain the same. The only difference caused by the 9 days is that our communities may be denied environmental justice and the democratic right to appeal. The lawyers for our communities will give us their best advice on whether and how to proceed. A final decision will be made within 15 days of MOE issuing the permit.

FORCE will continue to provide updates as they become available. Any member of the Community who receives notice of testing from St Marys or sees any activity that they feel is significant is encouraged to contact FORCE at info@StopTheQuarry.ca with their observations.

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Thank You!

The Community has spoken loudly and clearly about its concerns with the St Marys Permit To Take Water (PTTW) application and planned Groundwater Recirculation System (GRS)testing.

Well over 150 (that we know of)residents and community stakeholders e-mailed, faxed, and mailed letters to the Ministry of the Environment (MOE). This was in addition to the November 30th, 2006 formal submission from FORCE, on behalf of the Community, which was accompanied by reports from our hydrogeology and natural environment experts. Together, we've recorded our collective and individual concerns:

We've explained why we think the testing is premature in light of the Ontario Clean Water Act's commitment to a source water protection plan for our area. It is also premature given that hydrogeology, natural environment, transportation, and other studies in support of the development application are still pending.
We've called for MOE to exercise the precautionary principle because the GRS proposed is clearly unproven technology, without any long term successful precedent in a fractured bedrock setting, such as ours.
We've explained what our concerns are and substantiated why: potential impacts on the quality and quantity of our drinking water, potential ecological impacts on the creeks and Provincially Significant Wetlands and their resident species, potential flooding impacts for adjacent properties, and more.
We've questioned how the tests proposed will address the well documented long term causes of failure in GRS systems.
We've explained our concerns about how any tests conducted should be independently monitored and thoroughly documented to allow for proper assessment.

As a Community, we made substantive, constructive comments. But we did so without losing the passion we have for protecting our Community.

At this point, we do not know what MOE will decide or when they will decide. We should be prepared for the likelihood that before the final decisions are made on the Zoning and Official Plan changes, or before any future Aggregate Resources Act licence decision is made, some testing of proposed mitigation system(s) may have to take place.

If and when testing of a proposed mitigation system does occur, together, we have voiced the Community's concerns and in the process attempted to impact any test work plans, and any terms and conditions, that may be attached to any permit that may be granted.

FORCE will continue to monitor the PTTW application status and will keep the Community informed of any developments.

Once again, Thank You. Thank You for speaking up in defence of our Community.

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Details of the proposed onsite GRS testing

After several discussions with representatives from St Marys Cement Group (CBM), the company has agreed to provide the Community with electronic copies of the documentation supporting their recent Permit to Take Water (PTTW) application to the Ministry of the Environment (MOE).

This PTTW application is in support of their plan to conduct onsite field tests of their proposed Groundwater Recirculation System (GRS) for the proposed Flamborough Quarry. The GRS is the proposed approach to mitigate i.e. reduce, the unacceptable groundwater impacts from quarry dewatering.

Their application requests permission to take water at a rate of 8,800 litres per minute, 24 hours a day (for a total of up to 12,700,000 litres / 2,800,000 gallons per day) for a period of 20 days.

(Note: the new enhanced Carlisle Municipal Water System has a maximum rate of approximately 3,000 litres per minute or 4,320,000 litres / 950,000 gallons per day.)

Test Details

Through the documentation in support of the PTTW application, we have learned the following details about their plans.

The objectives of their test are two fold:

to collect additional geologic and hydrogeologic information about the site in order to characterize the "productive zone" of the aquifer and
to undertake a pilot-scale evaluation of the GRS system.

They are proposing a series of tests, each lasting 5 to 6 days in length.

Test 1 is intended to assess the dewatering that will occur if there is no mitigation to the quarry's impact on groundwater. To simulate the effect of the quarry face or wall they are proposing to drill three large diameter wells (300 mm or 12 inches) 50 m deep in a straight line spaced 50 to 60 metres apart. Water will be pumped out of these wells at high rates to attempt to simulate the expected dry quarry face wall. They are estimating that in order to simulate the drawdown in water levels that will be caused by the quarry (30 metres at the quarry face by their estimates) they will need to pump water out of the three wells at a rate somewhere between 800 to 2,000 gallons per minute or 1,150,000 to 2,880,000 gallons per day. The water pumped out during this test will be directed into Mountsberg Creek.

Test 2 will attempt to assess the effectiveness of the GRS implemented by an open trench cut into the bedrock. The trench will be cut to an average depth of 1 metre into the bedrock and will be 150 meters in length.

Given that the computer models predict 45 to 50% of the water will circulate from the GRS directly back into the quarry itself, the tests call for the volume of water pumped to be increased to 1,300 to 2,500 gallons per minute or 1,872,000 to 3,600,000 gallons per day.

They also indicate that some of the water may need to be diverted to Mountsberg Creek as not all of it may be handled by the trench.

Test 3 will attempt to assess the effectiveness of the GRS with the addition of boreholes along the bedrock trench. Boreholes will be drilled along the length of the trench at 10 metre intervals. Once again pumping will occur at the higher rate and diversion to Mountsberg Creek is possible.

There are two more optional tests:

Test 4 will see new boreholes added at 5 meter spacing along the trench to increase recharge

Test 5 will introduce hydraulic fracturing or blasting which will be done to enhance the fractures and further increase recharge rates into the bedrock.

Initial Questions / Concerns

A preliminary review done by FORCE has generated the following areas of concern:

Volume of Water to be Withdrawn from the Aquifer

The volume of groundwater involved in these proposed tests is significant. During the second and third tests the maximum pumping rate is estimated to be almost 4 times the maximum volume licensed for the Carlisle municipal system. What impact will removing that kind of volume have on the existing users of the aquifer? How will the seasonal changes in groundwater conditions impact any results obtained from the tests done now?

Water Discharge Volume into Mountsberg Creek

What impact will discharging this volume of water have on the ecology of Mountsberg Creek? How will any difference in temperature or chemical composition impact the creek's existing environment? What are the flood plain implications?

Potential for Contamination of the Groundwater Aquifer

If the proposed tests are successful, groundwater will be taken out of the aquifer, exposed to potential surface contaminants and changes in temperature, and then transported directly back into the aquifer. Groundwater will become surface water, and then immediately become groundwater once again. How will the safety of our groundwater supply be ensured during such a process? Changes in temperature can, for example, contribute to bacteriological growth within the aquifer itself.

Fracturing the Aquifer is an Irreversible Change

What impact will fracturing the aquifer with blasting have on existing groundwater users? How can we be assured that there will be no negative impact as any changes in groundwater flow from such an activity would be irreversible?

Next Steps

The full set of documentation provided can be found below or on the St Marys Cement Page.

In discussions with MOE we have had the deadline for public comment extended until December 1st, 2006.
(Further details can be found here: Environmental Registry posting of St Marys PTTW)(586KB)

We have sent all of the reports to our Community experts and they will be reviewing the documents and preparing a submission on our behalf.

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Your Voice is Needed!

As you may be aware, Gartner Lee Limited has submitted a Permit to Take Water (PTTW) Application to the Ministry of the Environment (MOE) on behalf of St Marys Cement in support of their plan to field test the proposed Groundwater Recirculation System (GRS) on the proposed Flamborough Quarry site. The Ministry of the Environment is asking for public comments.

Call to Action

We encourage you to take action on this matter. Please make your voice heard.
Comments will be accepted by MOE until December 1st, 2006.

The information on where to send your comments is shown below. Please ensure that you reference the EBR Registry Number (IA06E1293) in your comments. To make it easy, the following template letter has been prepared. It contains a full discussion of the issues referenced below in the background information. Feel free to use it or to write your own using its basic points.

We should prepare ourselves for some form of testing to proceed at some time. It would be unusual for at least some level of information gathering not to be permitted. However, given the intrusiveness and potentially irreversible aspects of the tests as proposed, we are asking as a community that the MOE allow other source water protection work and work on the application to proceed first. Then if and when testing is permitted, the scale of the testing should be addressed and the range of tests performed be limited based on the results achieved on the specific site.

Your voice will help to ensure our community's requests are granted. Take action right away and send in your comments by e-mail or fax before the deadline.

: Send Comments to:; PTTW Coordinator; West Central Regional Office; 119 King St. W, 12th Fl.; Hamilton, Ontario, L8P 4Y7; Phone: (905) 521-7587; Fax: (905) 521-7820; Email: Cora.Sheppard@ontario.ca and please copy FORCE at info@StopTheQuarry.ca

(Depending on your email program, clicking on the email link above may fill in portions of the email automatically.)

The template letters will open in a new window:

Template letter in Word format.

Template letter in Text format.

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Background Information

The Permit to Take Water application requests permission to take water at a rate of 8,800 litres per minute, 24 hours a day (for a total of up to 12,700,000 litres / 2,800,000 gallons per day) for a period of 20 days. By comparison the new enhanced Carlisle Municipal Water System has a maximum rate of approximately 3,000 litres per minute or 4,320,000 litres / 950,000 gallons per day. The application is requesting to take almost four (4) times that amount.

The application was submitted on October 4th and because of the level of concern surrounding this application on October 12th the Ministry posted the application on the Environmental Registry. (Copy of Environmental Registry PTTW Posting) (586 KB) for public comment. The original deadline for comments was November 13th but that deadline has now been extended until December 1st, 2006.

FORCE has obtained the documentation in support of the application from St Marys Cement and has had it reviewed by our community's expert Team. The following concerns have been identified:

Should field tests as intrusive as those being proposed here be conducted before there is evidence that they are likely to succeed? The studies provided as supporting documentation by Gartner Lee state that there is "little clear evidence" that these systems have 'succeeded in their objective" and they confirm that there are "No examples of the use of recharge wells as a mitigation measure for quarry dewatering". And beyond that, why should intrusive tests be conducted into the community's aquifer when a number of other matters such as transportation remain unresolved? Isn't "the cart being put before the horse" .
The Volume of Water to be removed from the aquifer is significant and there is concern that there could be impact on existing water users.
The Volume of Water to be discharged into Mountsberg Creek is also significant and there are concerns over the potential environmental impact on the Creek from changes in Flow Rate, Chemical Composition, and Temperature.
If Aquifer Recirculation does occur, how will the quality of water in the aquifer be protected from potential Surface Contaminants and Changes in Temperature which could lead to bacteriological impacts?
The proposed tests include some procedures such as aquifer fracturing that would be irreversible and could possibly impact existing ground water flows. How will existing water users be protected from potential changes in water quantity and quality?
What will the testing mean? Even if the tests are declared a success by St Marys, the dominant mode of failure in this class of systems is caused by plugging up and bedrock dissolution over the long term. These short term tests will do nothing to address these well documented issues. Also, how will these tests performed now account for the seasonal changes in groundwater conditions?
There are a series of tests being proposed. Each of them becoming more invasive into the groundwater aquifer. These tests should be gated by independent experts such that unless certain criteria are achieved during the early tests, the later tests with potential irreversible negative impact would be restricted.

Your voice will help to ensure our community's requests are granted. Take action right away and send in your comments by e-mail or fax before the deadline.

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FORCE submits comment to MOE on St Marys PTTW Application

On Thursday November 30th FORCE submitted comments on behalf of our Communities to the Ministry of the Environment concerning the St Marys Cement Permit to Take Water application. The PTTW application was in support of St Marys' large scale field tests of their theoretical Groundwater Recirculation System. This GRS system is St Marys' proposed mitigation method for the unacceptable groundwater impacts identified by their own consultants as resulting from the proposed quarry.

FORCE challenges the application in their submission in two different ways. First that the proposed testing is premature and secondly that the testing plans are overly intrusive and not appropriate for such a sensitive hydrogeologic area. The FORCE submission is supported by reports from our Community expert Team in the areas of Hydrogeology and the Environment.

In addition to the formal comments from the FORCE Committee on behalf of the Community at large, a great many residents have submitted comments to the MOE expressing their individual concerns over the application. The MOE public comment period ends on December 1st and concerned residents are encouraged to make the comments before that deadline. Detailed instructions can be found here.

FORCE will continue to monitor the application and will inform the Community of any developments.

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FORCE Community Submission:

FORCE submits comments to MOE regarding draft PTTW for St Marys CBM - June 2008 (126 KB)
FORCE Submission to MOE re St Marys Cement PTTW - EBR #IA06E1293 - November 2006 (277.8 KB)

Community Expert Reviews - St Marys Cement application documentation - GRS testing:

Review of MOE Draft PPTW - Intera Engineering Ltd. - Kenneth Raven, P.Eng.,P.Geo. (81 KB)
North-South Environmental Inc. - Brent Tegler PhD (40 KB)
Hydrogeologic Review of GRS Work Plan - Intera Engineering Ltd. - Kenneth Raven, P.Eng.,P.Geo. (90 KB)