March 6, 2002 – Letter to MPP Toby Barrett

March 6, 2002

M. P. P. Haldimand-Norfolk-Rrant
Mr. Toby Barrett
39 Norfolk St.
SIMCOE, Ontario

Dear Mr. Barrett:

I am writing in respect to our proposed Quarry at Hagersville which has been the subject of
various letters over the past 4 years copied to you, the Ministry of the Environment, and the
Ministry of Natural Resources.

As you are well aware, this application for rezoning and Class A Category 2 M.N.R. license, along
with the uncomplimentary review from the Ministry of the Environment, provoked a long drawn out
and costly Ontario Municipal Board hearing process which lasted most of the year 2000 and
concluded November 1st, 2000.

On April 3rd, 2001 approximately 5 months after the hearing concluded we received a decision
order from the O.M.B. and after the 30 day appeal period had passed I called the O.M.B. for
clarification and spoke with case worker Andy Dawang as to when this order became effective,
and whether or not we could proceed with development of the quarry, as we were reluctant to
expend money on the property, and then have someone obtain a stop work order so that we could
not proceed. I was assured by Mr. Dewang that the Boards’ position was that the decision had
been rendered and there was nothing to prevent us from proceeding.

Although the decision order did not direct that a Permit to take water was required prior to
issuance of the M.N.R. license, in his summation Chairman Harron had stated that he agreed with
the M.O.E. position of the October 20~ letter proposing that a Permit to take water be issued by
M.O.E. prior to issuance ofthe Class A License.

In early May 2001 an application for a Temporary Permit to take water was applied for to the
M.O.E., so that we could proceed to develop the quarry and conduct the further Hydrogeological
review requested by the Dillon Peer review within the one year term of the Temporary M.O.E.

At the end of May I called the Director of Water Resources M.O.E., Hamilton branch to inquire as
to the status of our application. Mr. Odum stated that we did not need a Permit to take water as
our prescribed extraction evidence to the O.M.B. was that we would not contact the water table
in the first lift of 7 metres and most likely would not require a Permit to dewater for 20 years, and furthermore he could no issue a permit before the
fact or before it was required.

I agreed with Mr. Odums’ comments, but reminded him that Mr. Harrons’ summation seemed to
indicate that we must obtain a Permit to take water before the issuance of the Class A License
from M.N.R. Mr. Odum then responded that he would have to have clarification from the O.M.B.,
and I had no further discussion with M.O.E until on July 12~, 2000 I received a fax from our
consultant of a draft agreement from M.O.E. for a Temporary Permit to take water. Although our
consultant had an appointment with M.O.E. staff for July 24th, 2000 this agreement had been
drafted without discussion or consultation with our consultant or anyone from our company.

On July 25th, 2001 the O.M.B. issued another decision order # 1194 which stated quote: The
Board Directs the Minister, pursuant to Section 11 (8) of the Aggregate Resources Act R.S.O.
1990 to issue a Class “A” license for the removal of aggregate from lands composed of Part of
Lots 10,1 1, and 12, Concession 12, in the City of Nanticoke subject the following conditions:

1. The applicant shall obtain a long~term Water Taking Permit issued by the Ministry of
2. The applicant shall fulfill a set of conditions as set out in Attachment “2”
The license is for the removal of aggregate to the bottom of the Bois Blanc formation
only. and there is to be no quarrying of the Bertie formation at this location. The
action plan is attached as Attachment “3”.

Upon reviewing condition # I of the decision, this seemed to cancel any possibility of obtaining a
Temporary Permit to take water. This meant that we were too late in the season to proceed with
hydrogeological investigations and develop the quarry and obtain a return of cash flow in the year

At that point we had no option but to instruct our consultant not to pursue further discussions
with M.O.E. and deferred all further expense in this regard. By this time we had already spent
just under $100,000.00 on hydrogeological investigation on the property, and the work suggested
by Dillons’ Peer review came in at an additional estimate of $110,000.00.

In our view this additional investigation is not necessary at this time as our own investigations
indicate no contact with the water table in the first lift of 7 metres. If there is no contact with
the water table there is no need to dewater for extraction, therefore no dewatering means that
there is no impact. There is quite adequate monitoring provisions in the 55 conditions agreed to at
the hearing, until the point where it becomes necessary to dewater for extraction.

The proposal by M.O.E. in the letter of October 20~, 2000 which evolved through discussion
between our lawyer and Barbara Ryter of M.O.E. was a no brainer right from the start for a
number of reasons.

In the first place it was illegal to propose a condition before the fact, that a Permit to take water be obtained prior to issuance of the M.N.R. license. This is already addressed under Prescribed Conditions of the Aggregate Act under Category “2” Section 3, Subsection 3.9 quote: If required, a Permit to take water will be obtained for utilizing ground and/or surface water. unquote.

Aggregate Act

Prescribed Conditions:

The prescribed conditions are conditions that pertain to the individual category and cannot be varied or recinded by either the Minister or the Ontario Municipal Board. On a site-by-site basis, additional conditions can be attached to the license or site plan at the discretion of the Board or Minister, however these conditions do not form part of the prescribed conditions.

We are extremely disappointed in what has turned into a complete fiasco, as a result of what now appears to be a negligent performance by our lawyer, our planner and officials of M.O.E. in providing this illegal proposal to the O.M.B.. This was done at the insistence in the I 1~ hour over my protest that this would only serve to further complicate matters, which history now confirms to be correct.

The October 20th, 2000 M.O.E. letter was received by fax from our lawyer October 234, 2000 at 10:33 A.M. and read by myselfthat evening after I returned home that day from the first day of the O.M.B. hearing.

No one could expect Chairman Harron to be familiar with all aspects of the Aggregate Act, and he simply accepted information provided by lawyers and witnesses and attempted to resolve the various issues.

However, when I carefully read the fmal order of July 25th, 2001, I find no direction that a Permit to take water must be obtained prior to issuance of the M.N.R. License, and in fact Condition #2 appears to properly direct quote: The applicant shall fulfill a set of conditions as set out in Attachment “2”. unquote. If you make reference to Attachment “a” the first conditions of approval are the prescribed conditions of the Aggregate Act and under #9 it states: If required a Permit to take water will be obtained for utilizing ground and/or surface water.

This all seems quite clear to me, Chairman Harrons’ decision complies with the Aggregate Act prescribed conditions and directs M.N.R. it issue the license.

My question now is why has this O.M.B. direction not been complied with by M.N.R. and what seems to be the problem?

If there is any common sense or logic, the bottom line is, that if first the ~.N.R. license is not issued, we don’t require a Permit to take water, we also do not require 55 conditions of agreement to issue the license, and nothing in this entire exercise is relevant until the point that the license is issued by M.N.R. The appeal was filed with the O.M.B. for approval of rezoning and the issuance of a Class A Category “2” license, it was not appealed for an M.O.E. Permit to take water. The O.M.B. must respond directly to the appeal by M.N.R. and Nichols Gravel Limited. This Is the only option which directly fulfills the purpose for the O.M.B. hearing in respect to the M.N.R. License.

In summary I hereby advise that subject to a request by the land renter to construct an irrigation pond to water crops, we shall be proceeding with construction of this pond as of April I I’, 2002, as it is quite obvious that whether Mr. Sommers crops the land, or we crop the land, water will be required in order to keep the land productive in these periods of extreme draught condition~ntil such time as the M.N.R. License is issued the primary use of this land is Arming which would make the construction of the irrigation pond comparable to an “other use” such as the Van Aqua Fish Farm gravel operation at Burford, Ontario. See letter Mr. Sommers. See Nichols Gravel Limited response.

In order to avoid further confusion and confrontation in the future, I suggest and request that the Ministry of Natural Resources immediately comply with the O.M.B. decision order of July 25th, 2001 as directed, and issue the Class “A” Category “2” license to Nichols Gravel Limited.

Thank you for your consideration to this letter.

Yours sincerely,

Gary Nichols, Pres.

Nichols Gravel Limited.

cc Minister of Natural Resources
cc M.O.E. Mr. Paul Odum
cc M. N. R. inspector Joe Strachan
cc O.M.B. Case Worker Andy Dawang

Go back.

Leave a Reply