A Primer for Residents & Groups Faced With a New Pit or Quarry Operation
You and your community have just discovered that a company has applied to locate an aggregate pit or quarry in your area.
- Is that a bad thing?
- If so, can you do anything to stop it or make it “not so bad”?
- Where do you start?
- What will you need to do?
- What will you need to learn?
- How much will it cost?
- How long will it take?
- And, perhaps most importantly, what are your chances of success?
Gravel Watch Ontario has created this primer to help you get started in the right direction, give you some understanding of the processes involved, answer many of your early questions, and guide you to the people, organizations and resources that can make your efforts more efficient and effective.
You will also find a wealth of additional useful information and tips in Gravel Watch’s “Information Guide for Citizens”.
Let’s get started…
The Bird’s Eye View
If an aggregate producer (also known as a “proponent”) wants to open a pit or quarry, he must follow Ontario’s legal processes under the Aggregate Resources Act (ARA) and the Planning Act. To make a long story short, he must apply for an aggregate license to operate from the Ministry of Natural Resources and Forestry and, if not already so zoned, to the local municipal government for a zoning change for aggregate extraction. There are many other laws involved for other aspects of operating a pit or quarry. But for now these two application processes are the main ones that will guide your activities, as they provide important openings for public participation. This primer proceeds on the basis that your local pit / quarry applicant has embarked on, or is about to embark on, one or both of these processes.
The First 45 Days – Where Do You Start?
First Things First – Get Moving! Time is of the essence! You will have just a few weeks
- To prepare for information-gathering and asking questions at a required public meeting
- To prepare and submit any objections you may have to the application to the Ministry of Natural Resources and Forestry (MNRF) and the proponent.
The applicant has had YEARS, extensive expertise and a budget of perhaps hundreds of thousands of dollars to research and prepare their reports. You have days, limited financial resources, and probably much less expertise to prepare your response. You must get organized and informed as quickly as possible.
Here’s where you need to focus your attention and efforts in the first forty-five days:
- Schedule a community meeting as soon as possible. You will want to enlist help in analyzing the application and the legislation involved, and support in opposing the applications, if appropriate.
- Learn the basic processes involved in obtaining approval for a pit or quarry:
- Aggregate license: granted by the Ministry of Natural Resources and Forestry (MNRF) under the Aggregate Resources Act (ARA).
- Zoning approval: granted by the local municipality under the Planning Act / Provincial Policy Statement (PPS).
- Permit to Take Water (PTTW) (if applicable – normally required if washing will take place onsite): granted by the Ministry of the Environment and Climate Change (MOECC).
- Get a copy of the license and zoning applications, along with all reports and studies the applicant has submitted. These will be available at your local MNRF and municipal offices. The proponent may also be willing to provide you with a hard copy.
- Divide and delegate, Part 1. There will be an overwhelming amount of information in the reports and studies, and in the legislation that governs pits and quarries (the Aggregate Resources Act, Planning Act and Environmental Protection Act – others, such as the Endangered Species Act, Greenbelt Plan, Niagara Escarpment Plan etc., etc. may also come into play). From your initial core group of supporters, determine who has the time and ability to do quick preliminary research of this information. Assign tasks accordingly.
- Hold your first community meeting. Lay out the proposal. Lay out the preliminary findings and concerns of the ad hoc “team”. Seek out expertise and resources within the community, and any connections your supporters may have to expertise that might help.
- Divide and delegate, Part 2. Within your expanded team, re-assign tasks and responsibilities based on new resources and information.
- Review recent OMB decisions in which the proponent has been denied a license. These are available through the Decisions / Outcomes pages on this website.
- Submit Letters of Objection to the MNRF and the proponent.
Fight it or Fix it?
At some point, you will need to decide whether your best course of action is to attempt to stop the proponent from going forward with their application, or to negotiate compromises with the proponent to reduce the negative impacts. There is no black-and-white answer to this question; the answer will depend on:
- How negative will the impacts be?
- Can the worst of the impacts be eliminated through negotiation?
- What are you chances of success in stopping the applicant?
- How strong is the applicant?
- Are they well-funded?
- How strong are their reports? Are they complete? Are they flawed? Are the flaws or omissions game-stoppers? (Sometimes what is not in the reports is much more important that what is in them!)
- How strong is your organization?
- Are you, or can you be, well-funded?
- How strong are your counter-arguments?
- Do you have strong community support?
- Do you have other important bodies or agencies “on your side”?
- How strong is the applicant?
Is This Proposal a Bad Thing?
Residents often bristle at the idea of a pit or quarry – especially a large or highly-impactful operation – locating in their community. Any aggregate operation creates negative impacts; to residents, to the municipality, and to the environment. You should attempt to assess what these impacts will be, and how objectionable / unacceptable they will be to you, your community and your potential supporters. Depending on the site and the proposal, potential impacts to look for can include:
- Noise & Vibration: A great deal of noise is created by extraction, blasting (in quarries) moving of the raw aggregate, screening and crushing, washing, loading, truck traffic on haul routes and local roads, and other factors. Some of this noise can be mitigated with setbacks, berms, planting of vegetation, directional extraction (using the face of the extraction as a barrier), noise suppression equipment, etc.; but there will always be an increase in noise levels at nearby properties.
This noise can vary in impact from negligible to noticeable to objectionable. The vibration associated with extraction, blasting, crushing and transport can be objectionable and, if extreme, can cause structural damage to buildings, swimming pools, etc.
Some things to look for: How will the proposed operation change the noise levels, based on the proposed noise generation and its proximity to neighbouring “sensitive receptors” (i.e. residential properties, schools, hospitals, etc.)? How objectionable will this change be?
- Visual Impacts: “Pits aren’t pretty.” With few or no exceptions, the view of a pit or quarry is not as pleasant as the view it will replace and, in many situations, can be downright objectionable. In the worst cases, beautiful scenery is replaced by a view of an industrial landscape, complete with massive stockpiles of aggregate (and perhaps recycling material and / or asphalt), crushers, drag lines, conveyors, asphalt plants, buildings and trucks. A view of a pleasant landscape is often replaced by a lifeless berm of earth, several metres high, and completely blocking the view. Even after the pit is exhausted and the berms are removed, what had previously been a rolling landscape is replaced by a flat, characterless plane.
Some things to look for: What are the current sight lines into the proposed site? How will the views change once berms are constructed? How will they change once the pit is exhausted and the berms are removed?
- Dust and Air Quality: Aggregate operations create dust – from extraction, from moving the aggregate, from screening and crushing, and from trucks entering and exiting the processing area. Fine particulate matter is a respiratory hazard. Airborne silica, a byproduct of aggregate processing, is a known carcinogen.
Suppression equipment and processes can reduce the release of dust and fine particulate matter into the air, but they can’t eliminate it. Diesel fumes from trucks and equipment, and fumes from asphalt plants can also have significant negative impacts.
Some things to look for: What do the studies and reports say about measures to mitigate (reduce) dust? Have they prepared models of dust and air quality? Are the models based on local conditions or on hypothetical scenarios drawn from some other location?
- Traffic & Safety: A large aggregate operation can require dozens of heavy trucks per hour to enter and exit the pit, to carry aggregate to its destination. This traffic can in some cases totally alter traffic patterns many kilometres from the pit or quarry; and can have a negative impact on road safety. If there are residential areas, schools, horse-and-buggy traffic, or other “considerations” along the haul route, the safety issues can be magnified.
Some things to look for: Do the traffic projections seem reasonable? Do they take into account “worst case scenarios – for example, reports often assume total traffic will be split 50/50 in two directions but, in reality, truck often travels 100% in one direction during one contract and 100% in the other direction during another contract? Are the background (existing) traffic counts based on current studies, or has traffic changed since those studies were done?
- Private Wells: Pits or quarries that extract near or into the water table, aquifers or aquitards (layers of soil that protect the underlying aquifers) can impact local wells, negatively affecting both quality and quantity of water available.
Some things to look for: How close is extraction to local wells? How close to the water table does the proponent plan to extract (or do they propose to extract into the water table)? From the hydrogeological reports, is the groundwater currently flowing towards or away from local wells? Which way will it flow during and after extraction?
- Property Values: A study conducted by American researcher Diane Hite verified that pits and quarries have a negative impact on the value of nearby residential properties, and that these impacts are substantial – a property immediately adjacent to a pit could experience a loss in value of over 30%, while a property even as much as three miles away could experience a 5% loss. Moreover, she found that these impacts were immediate on the application for the pit being filed; they were not contingent on the pit actually being in operation.
Ontario’s Municipal Property Assessment Corporation (MPAC) has recently acknowledged that pits and quarries do indeed have a negative impact on the values of nearby residential properties.
Some things to look for: How many homes are in close proximity – say 1,000 metres – to the proposed operation? What are the values of those homes? Given the impacts noted above, what will be the possible total impact to property values caused by this operation? (This is also powerful information you can use in soliciting support from your neighbours – this new operation will, in all likelihood, seriously impact their property value!)
What measures is the applicant taking to address these impacts, and will those measures create an end result that is acceptable to you and your community?
[A note on “NIMBYism”: Many groups that are opposed to specific aggregate operations are accused of “NIMBY-ism” (“Not In My Back Yard”). The argument goes that we have to get aggregate from somewhere, so you should just get over it and move on. While the fact that you simply don’t want a pit or quarry in your back yard may not be a good enough objection to stop an application, many of the impacts noted above shouldn’t be allowed in anyone’s back yard; or close to sensitive environmental areas, endangered species, cultural / heritage resources, Areas of Natural and Scientific Interest (ANSI’s), etc. There is nothing wrong with standing up to prevent unacceptable negative impacts – especially those that may be prohibited in various provincial and municipal legislation – from occurring in your community.]
- Municipal Government:
- Infrastructure & Maintenance: Aggregate operations put additional heavy traffic load on roads and bridges; in some cases necessitating upgrades prior to operations proceeding, and in all cases necessitating more frequent repair and replacement. With most Ontario municipalities already facing staggering infrastructure deficits, additional infrastructure costs can be a major burden on the municipalities affected.
- Property Tax Impacts: Although a relatively recent development, Ontario’s Municipal Property Assessment Corporation (MPAC) has recently acknowledged the negative impact aggregate operations have on nearby property values, and have instructed their assessors to account for that impact in assessments. This will result in lost tax revenues for municipalities and school boards, and these losses will have to be recouped through higher mill rates across the entire municipality.
- Public Wells: Just as extraction can negatively impact private wells, it can also threaten the quality of public wells and wellhead protection areas. If a public well or a source water protection area supplying hundreds of homes is destroyed, the cost of alternative supply (replacement wells, pipelines, trucking) can cost the municipality millions of dollars.
- Costs of Administration, Studies, Lawyers, Peer Reviews and Potential OMB Hearings: Even the simplest aggregate application must be reviewed and studied, and a report / recommendation must be prepared and presented to council for zoning approval. Depending on the complexity of the application, additional information and consideration required, concerns, public opposition, and potential costs of OMB hearings, the municipality’s cost of dealing with a zoning application can easily climb into hundreds of thousands of dollars and beyond.
- Political Considerations: Some aggregate applications can be extremely unpopular with local residents (a.k.a. “voters”), and politicians who support or approve these applications can find their positions in jeopardy.
Which of these impacts are relevant in your case? Has the proponent taken adequate steps to prevent or minimize them? Is your municipality aware of the potential impacts and, if so, what are their intentions in addressing them? Is the municipality a potential ally in your campaign?
- Endangered Species
- Ground & Surface Water
- Cultural Heritage Resources:
Go to the Legislation
Go to the Science
Does the science indicate the legislation will be violated?
What Will Your Campaign Cost?
It is critical that you understand the potential costs of a protracted effort to oppose an aggregate operation and that you establish a budget and a revenue plan to support that budget. Establish budget priorities in case you have revenue shortfalls, and create a control process to ensure that you are not spending money you don’t have. Nothing will erode your support and undermine your efforts faster than going tens of thousands of dollars into debt with no visible means of paying your bills.
To give you the big-picture bottom line, it is not unusual for the cost of opposing an aggregate application by a substantial and well-funded operator to run into several hundred thousand dollars.
Below we have listed some of the resources you may need, and the potential costs associated with them.
Studies & Reports
The applicant has had several studies and reports prepared by experts in each field. If you hope to question or refute any parts of those studies and reports, you will need to enlist equally qualified experts to prepare your own studies and / or conduct “peer reviews” of the applicant’s submissions.
Peer reviews can involve a simple visual review of the applicant’s submissions, or they can involve actual field work to study the area (for example, studying a wetland in order to request designation for provincial significance), and sometimes scientific modeling (in the case of noise impacts or air quality and dust impacts, for example).
Simple peer reviews can cost thousands of dollars; if field work is involved those costs can multiply into tens of thousands of dollars. If you require those experts to support their findings at an OMB hearing, you must allow for the costs of additional time and travel.
- Based on your team’s early work in identifying potential flaws in the application and reports, and the weight given to those issues in the ARA, PPS and OMB hearings, decide which reports might be worth questioning or contesting.
- Use local or “friendly” expertise as a starting point before you commission experts and studies. If you have expertise in an area among your residents or supporters, use those people to do preliminary work “pro bono” (for free). Because of the perceived bias in work done by supporters, reports from these people won’t stand up at an OMB hearing, but they may get the attention of your municipal staff and council. And they may allow you to aim your experts in directions that will save them time (and you money) in conducting their professional work.
If you choose to oppose the application, you will probably need a highly-qualified lawyer, particularly if the case goes to the Ontario Municipal Board. Good lawyers are expensive: $250 to $500 per hour is within the normal range for a qualified lawyer with expertise in environmental law and aggregate approvals.
The legal team will need to review and research the application and the reports. You will want them to meet with you (in person, by phone or electronically) from time to time to discuss issues and strategy. You may want them to represent you at various meetings and hearings, and to draft letters to and review responses from various bodies and agencies. And eventually, you may want them to represent you at an OMB hearing that could go on for weeks.
The hours add up quickly, and at hundreds of dollars per hour, the costs add up even more quickly. The good news is, much of the work can be delegated to junior lawyers and staff at the law firm. The bad news is, even the junior lawyers and staff are expensive.
- Establish very early on a rough budget for legal fees – at least for the first 6-12 months; then live within that budget.
- Establish early on with your legal team what your budget is, and ask for their assistance in prioritizing issues and staying within the budget.
- Create a process (board of directors’ approval, etc.) for deciding when and why you will involve your legal counsel. Avoid impulse phone calls or emails on issues that are trivial or that can be more efficiently handled in one communication involving several issues. (The meter is always running, on phone calls, emails, letters… what you thought was going to be a five-minute call can easily turn into a $250 bill. Do that a few times a week and you’ll have a major problem.)
- Decide who will contact the lawyers and have a clear agenda set out for each contact so you can avoid repetition and side-tracking.
Legal fees for a fairly short and simple case can easily run into the tens of thousands of dollars. If you become involved in a protracted battle, particularly if the case requires you to have legal representation at an OMB hearing, your legal costs can run into the hundreds of thousands of dollars.
While experts are expected to remain objective, to only report and testify based on fact and professional opinion (not personal opinion), your legal counsel is expected to be an advocate for your cause.
Should you decide to oppose the zoning and / or license application, you will almost certainly need to hire experts to conduct studies and peer reviews to determine if your case is sound, and if the case of the applicant is flawed. You may also need to have those experts testify on your behalf at an Ontario Municipal Board hearing.
Friends / Family / Residents
People that you and other members of your group know, who have some degree of expertise in various relevant fields, can be a valuable resource in the early stages of your information-gathering efforts. Depending on their level of expertise, they may be able to do some preliminary research to lay out a potential case for you, or they may even be qualified to do high-quality research and documentation for you.
The big advantage of this group is they will probably work for free, or perhaps for the cost of their out-of-pocket expenses. You should seek out anyone you can as early as you can to get you started in building your case.
The disadvantages of this group are that their expertise may be limited or not directly related to the issues at hand; and that they will be deemed at a potential OMB hearing as being conflicted because of their connection to your group. The credibility of their reports and testimony will be tainted by this conflict.
The applicant has hired experts in many fields – traffic, hydrogeology, noise, air quality, visual impacts, etc. to prepare the reports supporting their application. You will probably need to hire equally-qualified experts to review those reports, and potentially conduct additional study to confirm or refute the applicant’s claims.
There are several criteria to consider in choosing experts:
- In what areas might expert assistance be advantageous? Assuming that you don’t have an endless supply of funds, you will want to prioritize what areas will give you the best chances of success. The findings of your early research may have uncovered what appear to be flaws or weaknesses in the applicant’s reports. Depending on the seriousness of the flaws, the areas in which these reports specialize might be good candidates for expert review.
- What peer reviews are being required by other bodies outside your group? Peer reviews and further study are often required by many other bodies – municipal governments, conservation authorities, etc. Find out what studies and peer reviews are being required or considered, and then hold off on investing in these areas until you see the quality and findings of those reports.
- What is the reputation, quality of work, experience and cost of the expert you are considering? There is no point in hiring an expert and paying thousands of dollars for work that will not stand up to scrutiny in supporting your case. Ask the expert for a curriculum vitae and references. What are their qualifications? How long have they done this kind of work? What is their track record of success? Have they testified at OMB? Conduct an internet search on them and find out how they have performed at OMB. (Many technically-excellent experts do not perform well in the courtroom atmosphere of an OMB hearing.) Ask other experts in the same field or connected fields about this expert’s capabilities. Finally, expect to spend a significant amount of money for expert assistance, but balance this cost with your budget and priorities. You want the best help you can afford, but not help you can’t afford, or help you must sacrifice other important work to fund.
- Will they work for you? Many of the experts in any given field derive a substantial portion of their incomes from work they do for aggregate companies. They may be reluctant to accept a one-time contract to prepare a report that may jeopardize one of their client’s applications and in turn jeopardize future work for that client. Many groups opposing pits and quarries have encountered difficulty in finding local experts who will work for them to oppose an aggregate operation. Sometimes it is necessary to retain experts from outside of the local area to overcome this conflict.
Often, your legal counsel or experts you have retained can be a good source of suggestions and references for other experts.
How Long Will This Take?
What Are Your Chances of Success?
Conventional wisdom up until just a few years ago said that it was almost futile to fight a pit or quarry application in Ontario. Indeed, the proponent almost always succeeded, and its opponents were left with high costs, frustration… and a pit or quarry!
Since 2010, there has been a significant change in the assumption that proponents are always successful, and that there is no point in fighting them. In January of 2010, the proponent was denied its appeal of an unfavourable zoning decision in Aikensville and MNR was instructed to not issue the license.
Public Notification & Consultation
The Objection Process / Letters of Objection
Any person, organization or legal entity can file an objection to the license application. Affected governments and agencies (conservation authorities, etc.) and owners of properties within 120 metres of the boundary of the proposed licensed property will receive notice of the objections process immediately; others will need to learn of it or be informed. Any party wishing to object must provide written notice of their objection(s), and the reasons for them, to the applicant and the District Office of the Ministry of Natural Resources before the end of the 45-day notification period; otherwise it will be deemed that they have no objection. (Objections should be delivered by hand or by registered mail, and must include the date and the name, address, phone number and signature of the objector.)
The applicant “shall attempt to resolve all the objections” (Aggregate Resources Act), although it is unclear how earnest or thorough an effort is required by the applicant. Often, the initial response by the applicant will be in the form of a letter, and may or may not contain much valuable information directed specifically at the objections posed. Sometimes the applicant will arrange to meet with key objectors. Once the applicant has finalized their “attempt” to resolve the objections, they will notify the objector and MNR. The objector then has a further 20 days to respond to the applicant and MNR; if they do not maintain (by hand delivery or registered mail to the applicant and MNR) their objections and provide recommendations for addressing them, it is deemed that the objections have been resolved.
Legalities & Liabilities
If you choose to oppose the applications, you are treading into potentially legally contentious ground. It is well worth the effort and cost of incorporation to limit the potential liability to you, your board of directors, and your members. Being incorporated can also lend a degree of credibility to your organization.
Liability & Board Insurance
As with incorporation, and although it is more costly, you would be well advised to obtain liability insurance, both for the organization and for the board of directors. General liability will help to protect the organization and its members from any potential litigation, and also from claims resulting from accidents or incidents at events organized by the group. Board insurance provides similar protection to the members of your board.
Managed Communications / Spokespeople
“Loose lips sink ships”. It is critical to plan and manage your communications, and to have all important messaging for the organization flowing through one or two well-informed and restrained individuals. You should ensure that your messages support your strategy, reinforce the key points of your case, avoid trivia or “red herrings”, are timed and aimed at the right audience, are consistent, and don’t contain any inaccuracies or accusations that may expose you to liability or libel.