Investigation: Aggregate Resources Act

Sand and gravel (aggregate) extraction is regulated by MNR under the Aggregate Resources Act (ARA), which requires operators to follow the conditions of their site plans. A violation of the ARA was alleged in a May 1999 application for investigation. The applicants claimed that The Murray Group Ltd. did not follow their site plan for the Bowman Pit Complex near Elora, excavated below the water table, and damaged a wetland and a woodlot. The applicants also alleged damage to the groundwater sources of cold water trout streams, a violation of the federal Fisheries Act.

In response to the application, an independent MNR investigator reviewed documents, visited the site, and interviewed the operator and the applicants, as well as MNR and MOE staff. The investigator found that, although the current site plan contains provisions that protect the wetland and woodlot, no such protection was in place 10 years ago, when the damage occurred. The investigator also found that there was no excavation below the water table, and thus no damage was done to the cold water streams. The ministry therefore concluded that there was no contravention of either the ARA or the federal Fisheries Act.

The ECO commends the MNR for assigning an independent investigator. The ECO also found the MNR investigation thorough. In particular, the ministry's investigation of the alleged Fisheries Act contravention is commendable, since MNR has recently simply referred such allegations to the federal Department of Fisheries and Oceans.

However, we found the summary of the investigation given to the applicants inadequately summarized and, in some places, misrepresented the findings in the investigator's report. For example, MNR stated that "there was no evidence found" that the operator had not completed required remedial work. The summary omitted to say that the reason that "no evidence" was found was because MNR staff did not visit the site to check on the operator's self-reports of non-compliance in 1997 and 1998. By the time the EBR investigation occurred, it was not possible to confirm whether the remedial work had been performed.

Although the operator had reported excavation depth violations in reports dated September 1997 and September 1998, MNR concluded in its EBR investigation that no depth violation had occurred. However, the summary of MNR's investigation did not make clear this finding applies only to the time of the investigation, in 1999, by which time the operator had applied for, and received, an amendment to the depth limit and a new site plan. This does not appear to be a reasonable response to a report of non-compliance, nor a fair response to an EBR application.

The investigator's report also confirmed the applicants' allegation that MNR staff destroyed the site plan that was in effect until December 1998. The investigator concluded that this was done in accordance with a ministry policy to destroy site plans for aggregate sites once a new site plan is approved, and that no further action was required. This is troubling, since the policy makes it impossible to investigate or prosecute the alleged violations of the site plan in effect just five months before this application was received. MNR should review this policy, as it could hinder future applications for investigation under the EBR and prosecutions under the ARA.
 

MNR Comment:

MNR has reviewed practices related to the retention of site plans and has determined that site plans and other documents should be retained for a minimum of five years, and in some cases, for the duration of the license.

The investigator's report also indicates that MNR does not have sufficient resources, at least in the Guelph District, to regulate the self-monitoring system for aggregate extraction. The ECO's 1997 annual report contained a review of the changes to MNR's regulation of pits and quarries, including the move from annual inspections by MNR staff to annual reporting by licence-holders. At that time, MNR was intending to audit or field check 20 per cent of licences in 1997/98 and a minimum of 50 per cent in following years. This investigation found that ministry policy in 1999 was to field check 10 per cent of licences, but that Guelph District did not field check any in 1997/98 or 1998/99, due to inadequate staffing, and was planning to inspect only 25 (or 8 per cent) of the 334 licences in the District in 1999/2000.

The ECO encourages MNR to review the effectiveness of its Aggregate Resources Compliance Reporting Program, to determine how well inspections are being conducted by the different district offices, to see whether there are systemic problems with the program, and to develop remedies and put them in place. This would be a positive result from this EBR investigation, similar to the ministry's response to the 1998 forestry applications for investigation, which resulted in a review by the ministry of its Forest Operations Compliance System (see pages 95-96).
 

MNR Comments:

MNR has recognized the workload disparity within the Guelph District and has realigned the area responsibility for the adjacent aggregate resources inspectors to help balance the workload.

In 1999/2000, MNR staff was required to conduct a minimum of 10% field audits for licensed sites and 100% office review and verification of Compliance Assessment Reports. This amount has increased to a minimum of 15% field audits for 2000/2001 and will eventually increase to a minimum of 20%. The minimum of 20% is necessary to ensure that every site is inspected within the five-year window for prosecutions, as per the Aggregate Resources Act. These are minimum requirements and some MNR districts may audit a significantly higher percentage of sites. MNR's 2000/01 Business Plan commits the Ministry to a review and audit program to assess the effectiveness of the Aggregate Resources Compliance Reporting Program. The review that is being undertaken is due in part to findings of this investigation and in part as a normal requirement of implementing new legislation and policy.
 

The Environmental Commissioner's report  uses the following terms to describe the MNR investigation: "misrepresented findings", did not give "a reasonable response" nor a "fair response".  The report states that it is "troubling" that the MNR destroyed the site plan.  These phrases indicate that the MNR investigation was deeply flawed.  However, they  understate the degree of failure of the investigation.

In the case of the site plan destruction, the MNR investigation report  claims that MNR has a policy of destroying site plans immediately upon the obsolescence of these plans.  When requested under Freedom of Information to produce a copy of this policy, MNR produced a policy requiring site plan retention for eight years.  In other words, MNR's statement about their policy misrepresented the facts. Further, the site plan destruction by the MNR violated Freedom on Information Act because at the time of destruction, the applicants had an outstanding Freedom of Information request for this same site plan.

At the time of writing his report, the Commissioner did not have access to a number of MNR documents detailing how the Bowman Pit investigation was carried out.  These additional documents were extracted from the MNR by the applicant, over a period of  a year (1999-2000), by means of Freedom of Information requests.  These further documents indicate further serious failures in MNR's investigation.  In light of these further documents, the Commissioner's statement that the MNR investigation was "thorough" is not warranted.  Also, the Commissioner's statement that the MNR investigation of alleged Fisheris Act violations is "commendable" is not warranted.

The applicant's conclusion is that the MNR investigation failed to meet minimal standards of reasonableness and fairness.  The applicant's further conclusion is that MNR's conduct in carrying out this investigation indicates that the MNR is unable to meet its responsibility to enforce compliance under the Aggregate Resources Act.