Abstract. This report consists of an overview and then a detailed analysis of an investigation of alleged environmental violations carried out by the Ontario Ministry of Natural Resources (MNR). The analysis determines (1) that the MNR investigation did not collect the appropriate evidence, (2) that it did not appropriately consider the evidence that it had available, and (3) that it violated its own policies, including destroying a site plan. The analysis determines that the investigation contains unreasonable interpretations of standards and laws. It determines that the MNR investigation report contains mistakes of fact and mistakes of law, and that the investigation was improperly discriminatory by depriving the persons applying for the investigation of their right to a reasonable investigation under the Ontario Bill of Rights.
 
 

Table of Contents

The Bowman pit was investigated by the Ontario Ministry of Natural Resourses (MNR) in July, 1999. The pit, which is really a complex of three gravel pits individually called the Bowman, the Darrington and the Bosomworth pits, is operated by a small independent company called the Murray Group, whose vice president, Mr. Richard Seibel, is their spokesman. The Bowman pit complex is located four kilometers southeast of the village of Elora, which is well known for its scenic river gorge.

Request for Investigation

The investigation was in response to a Request for Investigation under the Ontario Environmental Bill of Rights (EBR), submitted in May 1999 by two neighbours of the pit, Mr. Ric Holt (author of this note) and Mr. Piotr Piotrowski. They had earlier voiced their concerns about environmental violations in the pit to the MNR, but were not satisfied with MNR's lack of response. They alleged that the operator was digging below the water table, digging deeper than the maximum allowed depth, endangering a cold water stream, damaging a Provincially signficant wetland, etc. In Ontario, there are few ways for the public to force an operator to halt environmental violations. One can appeal to the MNR to enforce the law, but too often these appeals fall on deaf ears. In a case like this, the public cannot sue the company. However, the Ontario Environmental Bill of Rights (EBR) provides a way for the public to request an investigation and that is the route Holt and Piotrowski took. (See http://plg.uwaterloo.ca/~holt/pit/ebr/EBRall.html for a copy of the Request for Investigation.)

The EBR law requires the MNR to classify its "instruments" (regulations, etc.), to allow the public to request investigations of alleged violations of these instruments. However, the MNR has dragged its heels for years, avoiding this classification and thereby making investigations impossible. The way the Holt/Piotrowski Request for Investigation avoided this problem is that they alleged that the actual laws (the Aggregate Resources Act, the ARA, in particular) were violated, and not just instruments such as regulations. Because of this, and because of the seriousness of their charges, the MNR had little choice but to carry out the investigation. (The web page for the EBR is http://www.ene.gov.on.ca/envision/env_reg/ebr/index.htm.)

The Investigation

The MNR investigation was carried out by MNR investigator Ms. Anne Hinton. She interviewed various parties and visited the pit. She wrote her 64-page investigation report (called here the Hinton Report), dated 6 August 1999. Her report was reviewed by a special MNR panel on 12 August 1999. The panel consisted of Scott Poser (Coordinator), Al Mack, Anne Hinton, Hinton's boss Mike Morencie, Ron Kerver (associate of Craig Selby), Brian Messersmidt, and Ray Pichette. The purpose of the panel was to decide the outcome of the investigation; strangely, Freedom of Information (FOI) requests located no indication that there were minutes from this key meeting. The outcome was written up as a 4 page Notice of Outcome, released on 19 August 1999 by the MNR EBR Coordinator, Mr. Scott Poser. Apparently most of these people were well acquainted with MNR personnel Craig Selby and Warren Knight, who will be introduced below, and Richard Seibel. (A copy of the Notice of Outcome is in http://plg2.math.uwaterloo.ca/~holt/pit/ebr/MNRinvestig.html.)

As of August 1999, the Notice of Outcome was available to the public, but the Hinton Report did not become available until a year later, in August 2000. Most of it was eventually extracted from the MNR by Mr. Holt by means of a protracted Freedom of Information (FOI) request, mediated by the Information and Privacy Commission (IPC). (For the web site on IPC and FOI see http://www.ipc.on.ca/english/index.htm.)

There is another key document, written by MNR biologist Mr. Daryl Coulson on 5 July 1999 on request of Ms. Hinton, which also remained hidden until August 2000. It gives this expert's opinion that the wetland adjacent to the pits was recently damaged. It is essentially the only expert opinion used in the investigation.

The MNR investigation used no depth of excavation measurements, no peizometer (depth of water table) measurements, and no surveying measurements, despite the fact that the allegations were primarily questions that could be answered by means of such measures. Other than Mr. Coulson, no expert visited the site.

Key Players

Two people who played key roles in the investigation were Mr. Warren Knight, the Aggregate Resources Officer (ARO) responsible for pit law enforcement, and Mr. Knight's superior, Mr. Craig Selby, District Manager for the MNR Guelph region. These two people were the same ones to whom complaints of environmental violations, preceding the Request for Investigation, were sent by the neighbours.

Another player in the investigation is the Aggregate Producers Association of Ontario (APAO, see http://www.apao.com). It is simultaneously a registered Ontario lobby organization, working to enact laws favourable to pit operators, and a partner with the MNR, entrusted by the MNR with a large trust fund for rehabilitating abandoned pits. As such it has the ear of the Minister of Natural Resources. Mr. Seibel, spokesman for the Bowman pit, is a former Director of the APAO.

Enforcement Climate

The Ontario government forced the retirement of roughly half of its MNR enforcement officers in 1996. Mr. Knight was a survivor of this action, accepting a much broader responsibility, including, as of 1997, the Bowman pit. Ms. Hinton was a victim, in that her job as an MNR enforcement officer (as an Aggregate Resources Officer) was eliminated, but she was able to retain employment in MNR by accepting a job as an investigator, in a new location (Thunder Bay). Mr. Bob Gibson, the Murray Group's consultant, was a victim, in that he lost his MNR enforcement job, and thence went to work for the operators against whom he had previously enforced the Aggregate Resouces Act (ARA) --- making him highly qualified to help the Murray Group in their operations. MNR enforcement personnel are aware that, with continuing government cuts, their jobs are in peril. They know that they may eventually be looking for work from the same pit operators against whom they are supposedly enforcing the law. Considering this situation, it is not surprising that an Aggregate Resources Officer, such as Mr. Knight, or his boss, Mr. Selby, might not be very enthusiastic about enforcing laws that constrain the operation of pits and that protect the environment.

Dramatically at Odds

The MNR's Notice of Outcome and the neighbours' Request for Investigation are dramatically at odds. The Notice states that there is "no evidence" of violations. The Request provides colour photographs of excavation below the water table, peizometer depth readings showing excavation below the allowed maximum depth, and various other first hand evidence of violations. The question is: How can these two be diametrically opposite? The cloak of secrecy around how the actual investigation was carried out and what evidence it actually collected made answering this question exceedingly difficult.

To answer this question, Mr. Holt launched a year-long series of FOI requests to the MNR, asking for all MNR records of the investigation, including measurements, interviews, and e-mail. After a number of months, the MNR released a number of documents. However, the MNR invoked an exemption from FOI to prevent access to the key documents. MNR claimed these key documents were exempt from FOI because they constituted part of an investigation into a law violation. Holt insisted that these documents were simply information, which under FOI must be released. This stand-off lasted some time, and was about to go to adjudication. However, in September 2000, the MNR had an abrupt change of heart, and released the most important suppressed document, namely, (most of) the Hinton Report. The MNR gave no reason for this change of heart.

Analysis of the Investigation

Whatever the reason for releasing the Hinton Report, with its release, it became clear how the investigation was carried out. It became clear who was talked to, what evidence was gathered, and how its conclusions were made. It became possible to understand how the MNR's Notice of Outcome could be so completely different from the Request for Investigation.

It became possible to carry out an analysis of the investigation. The resulting analysis is given in the attached "Part 2. The Bowman Pit Investigation: Analysis". The analysis determines that the conclusions of the MNR's investigation are not reasonable and do not follow from the evidence. The Notice of Outcome covered up violations by the pit operator, and covered up the failure of MNR to carry out its responsibility of law enforcment.

Why did it happen this way?

The purpose of this report is to analyze the MNR investigation and to report on how well it carried out its responsibilty. The question of why the MNR did not do a good job is not the focus of this report. However, this section will digress and will consider that inevitable question: Why did the MNR fail to carry out a reasonable investigation. The apparent answer is that, with the pressures brought to bear on Ms. Hinton, and on the entire investigation process, a reasonable investigation was nearly impossible.

Mr. Knight and Mr. Selby were implicated in Allegation 11 for failing to deal with the violations before the Request for Investigation. The two of them, during their interviews with Ms. Hinton, would have exerted a very strong influence on her. Their explanations of why various allegations were not true appear in the Notice of Outcome. Mr. Knight had responsibility for more pits than he had time to visit and more enforcement than he could possibly handle, and had pressure from the government to "go easy" on business.

Mr. Morrencie, Hinton's boss, should have helped protect her from the various biasing pressures. There is no indication that a reasonable effort was made to protect the investigation from the surrounding milieu of interested parties and conflicted interests.

It is highly likely that the Aggregate Producers Assocation of Ontario (APAO) brought pressure to bear at the level of the Minister's office. The FOI extracted records show various APAO enquiries into the investigation. The Minister's office ordered the investigation panel to send its Notice of Outcome directly to the APAO, suggesting that it was involved in influencing the investigation.

It may be that the level of violations existing in the Bowman pit complex were not much worse than that in many other Ontario pits, due to the general lack of MNR enforcement. Perhaps the panel felt that enforcement in this one pit, which would have been required if the allegations were found to be true, would not be "fair" to this one operator (the Murray Group).

No one person was the single guilty party for this failed investigation. Rather, the failure occurred because it was not encouraged to nor sufficiently protected to allow it to ferret out and publish the truth. The MNR's secretive approach encouraged a level of dishonesty that an open process would have prevented. In the end, the blame for the failure lies with the Minister of Natural Resources and the Provincial government, for creating a climate in which truth falls victim to political expediency.

The MNR's Responsibility

According to the MNR's Annual Report (called its Business Plan, see http://www.gov.on.ca/MBS/english/press/plans99/mnr.html) for 1999-2000, MNR has the following responsibilities.

1. "The ministry acts as the custodian of our natural legacy, and safeguards the public interest in Ontario's resources"
2. "The programs within the core business of natural resource management strive ... to develop ways of making decisions openly ..."
3. "MNR will continue to lead and support efforts to acquire the accurate and timely information and sound scientific knowledge necessary for managing resources on the basis of ecological sustainability."
4. "The ministry is committed to achieving a 90 per cent rate of compliance as determined through the Compliance Activity Reporting System, and will make the best use of its 281 enforcement positions to achieve this."

• "The ministry also recognizes the need for openness and consultation in decision-making which may significantly affect the environment."

• "The government is committed to the protection of the environment and the purposes embodied in the Environmental Bill of Rights. As the lead conservation agency, the Ministry of Natural Resources is responsible for managing Ontario's natural resources. Fundamental to achieving the sustainable development of the resources and maintaining the vitality of the environment is ensuring compliance with the statutes that the ministry administers."

Terminology from the Ombudsman

The following concepts and definitions from the Ontario Ombudsman's office (see office (see http://www.ombudsman.on.ca/frames_en.htm) are relevant:

1. "Decisions should be reached objectively, with due respect for relevant facts, and without bias."
2. "Adequate reasons to explain how and why the decision was made should be given to anyone personally affected."
3. "A process used to reach a decision can be described as 'unreasonable' if: ... there is an unfair, irrational, illogical, or untenable interpretation of standards or legislation."
4. "An act, omission, decision or recommendation can be described as 'improperly descriminatory' when: ... there is an apparent violation of a basic right protected by legislation."
5. "A 'mistake of fact' occurs when an act, decision or recommendation is based on information that is factually in error, or which has been misinterpreted, leading to a decision which is inappropriate or wrong. It can also occur when important facts have been omitted or ignored."
6. "A 'mistake of law' applies to situations where a government organization has full and correct knowledge of the facts, but incorrectly applies or interprets a statutory provision, regulation or common law rule or principle resulting in an improper decision or action."
7. "An act, omission, decision or recommendation can be found to be 'wrong' if: ... it is based on an incorrect interpretation of the facts [or] it is the result of carelessness on the part of employees of the governmental organization itself."
8. " 'Improper purpose' can be applied when a decision, recommendation, action or omission is based on otherwise proper policies and procedures but is used to achieve an improper purpose. ... It may be necessary to establish intent to support a finding of improper purpose."

Based on the analysis in the section "Part 2. The Bowman Pit Investigation: Analysis" this report makes the following overall conclusions:

1. The Bowman pit investigation did not reach its decisions objectively.
2. The Notice of Output did not explain how and why the decisions were made.
3. The investigation process was unreasonable, because it was irrational and illogical, and had untenable interpretations of standards and laws.
4. It was improperly descriminatory, because it violated the Applicants' rights to a fair and reasonable investigation under the Environmental Bill of Rights.
5. The investigation contained mistakes of fact, by misinterpreting the facts, such as the photographs of water table extraction as well as peizometer readings, and it ignored important evidence.
6. The investigation contained mistakes of law, by incorrectly applying laws and regulations, including those prohibiting excavation into the water table and prohibiting excavation within 5m of trees.
7. The investigation was wrong to state that there was no evidence of violations.
8. It had an improper purpose of exonerating the MNR staff as well as the operator, by claiming that the destruction of the Darrington pit site plan was legitimate and by stating that there was no evidence of violations.

Introduction

This analysis of the Bowman Pit Investigation is organized according to the Notice of Outcome, released 19 August 1999, for the Ontario Ministry of Natural Resources (MNR) investigation 99019. This was an investigation of alleged contraventions in the Bowman Pit Complex, located near Elora, Ontario. The MNR investigation was triggered by a citizens' Application for Investigation of 30 April 2000 under the Ontario Environmental Bill of Rights, submitted by Mr. Ric Holt and Mr. Piotr Piotrowski, neighbours of the Bowman pit.

The MNR Notice of Outcome, which is four pages long, is based on a 64-page report by MNR investigator Ms. Anne Hinton. Her report, called here the Hinton Report, is dated 12 August 1999. It was withheld from the public until 31 July 2000, at which time its first 48 pages were released as a result of a protracted Freedom of Information mediation between the MNR and Mr. Holt. The last part of the Hinton Report is still being withheld by the MNR.

This analysis primarily uses the information in the Hinton Report, but also uses documents which were extracted from the MNR, under the Freedom of Information Act, over a period of years: 1998, 1999 and 2000.

The eleven allegations in the Notice of Outcome have been numbered A1 to A11. This order is slightly different from the original order, AC1 to AC10, used in the Hinton Report. Note that there are 11 allegations in the Notice, but only 10 in the Hinton Report, because the Notice divides AC4, on woodlot destruction, into A3 and A7.

Interviews Documented in Hinton Report

As a part of her investigation, Ms. Hinton conducted interviews with the following three groups. Her questions to these people and their responses are recorded in the Hinton Report:

(1) The applicants. July 12, 1999, 1 hour, 17:00 to 18:00 (Holt residence) Mr. Ric Holt, Ms. Marie Holt and Ms. Cecylia Piotrowski (Mr. Piotr Piotrowski was not able to attend).

(2a) MNR personnel. Mr. Warren Knight, Aggregate Resources Officer (ARO) and Mr. Craig Selby, District Manager (Knight's superior), July 13, 1999, 6 hours, 10:00-16:00, (Guelph office, site)

(2b) MNR personnel. Alistair MacKinnon, Aggregate Resources Policy Officer (acting), July 15, 1999, 9:00am, no duration of meeting recorded, MNR Provincial Office, Peterborough

(3) The operator. The Murray Group (names not listed, although a "Mr. Murray" is mentioned in the Hinton Report, and presumably, Mr. Seibel, the pit spokesman, was present). Date not available, although this interview apparently occurred on July 12 or July 13, 1999. Ms. Hinton's questions and the operator's responses are still being withheld by the MNR, as of October 2000.

The Coulson Report

The Hinton Report omits the report by biology expert Mr. Daryl Coulson. This one-page report, dated 5 July 1999, was written at the request of Ms. Hinton. It was withheld by the MNR until 13 September 2000, at which time it was extracted from them by means of another Freedom of Information request. It is the only written report by an expert used in the investigation. The Coulson report states that the central wetland was disturbed and points out erosion into the Carroll Creek wetland from a non-comforming stockpile in the setback of the Darrington pit.

MNR's Introductory Conclusion

The MNR Notice of Outcome has this introductory conclusion:

"It is MNR's determination, based on careful consideration of the evidence, that the Aggregate Resources Act and the Fisheries Act were not contravened by the aggregate extraction activity at the Bowman Pit Complex."

This analysis will dispute this conclusion, and will claim that is it wrong, biased and was not arrived at objectively. It will claim that the MNR's conclusion was based on mistakes in fact, mistakes in law and involved improper purpose.

Relationship of Allegations A1-A6 to the Aggregate Resources Act

The Notice of Outcome prefaces allegations A1 to A6 with these remarks:

"Section 15 Every licensee shall operate the licensee's pit or quarry in accordance with this Act, the regulations, the site plan and the conditions of the licence.

Section 57 (2) Every person who contravenes or permits the contravention of the site plan or a condition of the licence or permit is guilty of an offence.

These sections of the Aggregate Resources Act require that the aggregate operator follow the direction for extraction and rehabilitation as outlined in the MNR approved site plan and licence for the site."

The Notice of Outcome then states this conclusion: "The MNR has determined that there is no evidence to support these allegations as outlined below."

Note that this MNR conclusion states that there is "no evidence" to support the allegations.

Next comes the analysis of the eleven allegations, A1 to A11, covered in the MNR Notice of Outcome.
 
 

Allegation A1 (AC1): Removal of aggregate from below the water table

MNR Observation/Conclusion. "The water that was shown on the pit floor (e.g., "Crescent Pool") in February, March and April has been determined to be from meltwater and precipitation which was held in place by a subsurface clay layer."

Analysis. This MNR conclusion was made without any measurements of the water table and without any expert input. The conclusion acknowledges water standing in the pit during the three months, which is direct evidence of excavation below the water table.

The MNR investigation does not state or clarify the definition of the term "water table". This term is defined as the top surface of a "saturated zone", i.e., the top of a region which holds as much water as it can.

The possible presence of a clay layer has no bearing on the question of whether the excavation entered the water table. The MNR conclusion seems to imply that there was no removal of aggregate below the water table, but in fact it simply states the investigation's hypothesis of where the water came from and what held it in place. This hypothesis does not clarify whether there was or was not removal of aggregate below the water table.

MNR did not clarify that the height of the water table varies with the season of the year and from year to year. The water table of interest for excavation purposes is the "seasonally high water table", which is the maximum water table height, considering variations in the water table height. In the conclusions of the Notice of Outcome and the wording in the Hinton Report, the simple term 'water table' is commonly used without clarification. It was often used in these MNR documents to mean the level of the water table at the time of interviews or discussion. This usage is confusing and sometimes misleading when attempting to determine if excavation violated the (seasonally high) water table. The applicants' Request for Investigation (see its Table 1) analyzed the contributing factors (variation in height, etc.); this analysis was apparently ignored by the investigation.

0.3m	Crescent Pool depth (11 Feb 99)
0.6m	Water table seasonal rise, from February to May
1.0m	Drought lowering of water table
1.9m	Total, excavation depth below seasonal high water table

Ms. Hinton produced a written, detailed request for MOE hydrogeologist, Mr. Jim Gehrels, to give his opinions on the water table, etc. According to MOE FOI coordinator, Mr. Fred Ruiter, Mr. Gehrels was misidentified as Mr. Shawn Kinney of MOE, and Mr. Kinney discussed these technical matters with someone, presumably with Ms. Hinton, for "about 30 minutes". Mr. Ruiter says there was no report produced.

According to the Hinton Report, Ms. Anne Hinton talked with Mr. Kinney (date not available, see Hinton Report, AC2, IF7). Apparently, she talked to him only about the possible damage to the Carroll Creek fishery (see A10), but not about the depth of the water table. There was no observation of the existing level of the water table. The most obvious way to do this would have been by means of a test hole in the area of the Crescent Pool. There was no use of test holes in the area.

According to the Hinton Report (AC1, IS), MNR's conclusions about Allegation A1 were significantly based on interviews with MNR Guelph personnel Warren Knight and Craig Selby, and with the pit operator. These two MNR personnel have conflicts of interest because if allegation A1 is determined to be a contravention, this will imply that Mr. Knight and Mr. Selby failed to take appropriate action according to allegation A11 (see below). In other words, if A1 is true, then the MNR personnel will be guilty of A11. Of course the operator has a vested interest, in that he would not wish to be shown guilty of allegation A1.

The Notice of Outcome concludes that the water was held in place by a clay bottom. This is an irrelevant consideration, because by definition, a water table does not depend on what is under the saturated zone (rock, sand, clay or whatever). The case of a pool of water is a special case of a saturated zone, in which the top of the pool is by definition the water table.

The Hinton Report concludes that the "ponded water was held in place by the clay layer and frozen ground." The Notice of Outcome omits the phrase "frozen ground", mentioning only the clay layer. Why should a statement of fact be given differently in these two reports?

The investigation did not consider the contributing factors to the depth of excavation below the water table. It did not consider the seasonal rise in the water table nor the existing drought lowering of the water table. The accepted definition of the term "water table" in this context is the "seasonally high water table", which is the maximum height the top of the saturated zone reaches when considered over a period of years.

In the Hinton Report, Information Findings AC1 IF9, IF10 and IF11 indicated no water standing in the Bowman Crescent pool site (June 21 by Wickham, July 12 & 13 by Hinton, Selby & Knight, July 12 by Hinton and Murray Group, April 22 by Knight and Selby). This should not be a surprise because the photographs in the Application for Investigation (see Figure 7 in their submission) show that the operator back-filled the Crescent pool in March 1999. These later observations say nothing about whether the excavation was below the water table in February-March 1999, as alleged in A1.
 
 

Applicants' Figure 7. Back-filling of Crescent Pool in progress (17 Mar 99).

Conclusion of analysis. The conclusions in the Hinton Report and the Notice of Outcome are significantly based on the reports of persons with conflicts of interest (namely Mr. Knight, Mr. Selby and the operator). They did not use any measurements, did not use expert advice, and did not clarify the technical term "water table". The Notice of Appeal's conclusion that the water "has been determined to be from meltwater and precipitation which is held in place by a subsurface clay layer", may or may not be true, but has little to do with whether there was excavation below the water table. This conclusion is at odds with the Hinton Report conclusion which states that "frozen ground" was also holding the water.

MNR did not reasonably investigate this allegation (A1) and did not appropriately consider the applicants' submitted evidence. MNR's overall conclusion that there was "no evidence" of violations is wrong and is a mistake in law.

Allegation A2 (AC3): Excavation below the maximum depth of excavation

MNR Observation/Conclusion. "The maximum depth of extraction has been reached in the Darrington pit site. It is recommended that the final rehabilitation be completed on the pit floor to ensure that the depth to the water table is not violated."

Analysis. This MNR conclusion ignores the allegation in the Applicant's Request for Investigation that depth of excavation was violated in the Bowman Pit, as well as the Darrington Pit; only the Darrington Pit is considered in MNR's conclusion.

The MNR conclusion, that the "maximum depth of excavation has been reached in the Darrington pit site" is ambiguous. It does not state whether there was a violation of the maximum depth. In fact, the following MNR statement, recommending ensuring that the depth not be violated, apparently acknowledges that the violation has occurred.

The obvious first thing to measure, in order to check a possible depth of excavation contravention, is the existing depth of excavation. Clearly, if the depth exceeds the maximum allowed depth, there is a contravention. The MNR investigation took no measurements of the depth of excavation on the site, and the Hinton Report and Notice of Outcome mention no such measurements. The investigation did not compare the depth of excavation with the limit of excavation in the site plan, which requires excavation to remain at least 1.5m above the water table.

There were two piezometers in the Darrington deep pit. These piezometers, which appear as clearly visible blue pipes (diameter about 4 inches) with white caps, were available for measuring the height of the water table. During Ms. Hinton's interview with Mr. Knight and Mr. Selby on 13 July 1999, 10:00-1600 (Guelph MNR office, site), Mr. Knight says to Ms. Hinton, "... Hydrogeologist --- from Limnoterra [Dr. Jon Plank] suggested placing 2 additional piezometers on floor to ensure staying 1.5 meters above ---- up and down stream monitoring --- these were installed in March 1999." Ms. Hinton, in her report, records seeing these piezometers during her Site Inspection of July 12-13, 1999. They are clearly visible in photographs taken as a part of her investigation. They were clearly visible and known about by Mr. Knight and Mr. Selby, who inspected the pits on 22 April 1999. How could it be that the investigation records no piezometer measurements? Since these piezometers had only one purpose --- to measure the height of the water table --- then surely someone took such measurements. Where are these measurements? Why weren't they used in the investigation? Surely, Dr. Plank, who provides the operator with hydrogeological advice, took measurements from these piezometers. Any such measurements were not taken into consideration by the MNR's investigation.

Note: It appears that Dr. Plank is not a qualified hydrogeologist.

The Hinton Report states, "The Applicants' piezometer reading at 'I' in the Darrington Pit (19333) April 18, 1999 indicated that the water table is 39 cm below the floor of the pit - 111 cm deeper than is allowed by the site plan." Piezometer 'I' is one of the piezometers installed by Dr. Plank. The Hinton Report should have also stated that the Applicants recorded water on the pit floor, indicating excavation below the water table on that date (April 18, 1999). These observations are direct evidence of excavation below the maximum depth of excavation. These piezometer readings, done by the Applicants, are the only actual measurements of the water table acknowledged by the entire investigation.

The Hinton Report states, "This reading [the applicants' piezometer reading] could not be confirmed at this time [July 12, 1999]". However, Ms. Hinton's Report does not state if she made an attempt to take a reading, nor did her report contain any readings. It is not clear what she meant by "could not be confirmed". This ambiguous statement occurs just where one might expect the investigation to list a set of measurements from the piezometers. Why were no measurements listed?

The Hinton Report does not consider the seasonal rise and fall in the water table, nor the depression of the water table due to drought conditions in determining the maximum allowed depth in the Darrington pit. It gives no consideration of the analysis of the seasonal rise and fall and the drought depression of the water table submitted by the Request for Investigation, given in its Table 3. Thus, the Hinton Report does not consider the relevant defintion of the water table, which is the seasonally high water table.
 
 
 

0.3m	Depth of pool
0.1m	Seasonal rise: April to May
1.0m	Drought lowering of water table
1.5m	Required excavation distance above water table in Darrington pit
2.9m	Total: Depth violation in Darrington pit in Crescent Pool

The Hinton Report (AC3) states that "the Murray Group should backfill this site [the Darrington deep pit] to the final rehabilitation depth this year to ensure that during the spring high water level they are at least 1.5 meters above the water table." This statement says that this allegation, A2, is true. It says that the excavation is below the seasonally high water table, which is exactly the contravention that is being alleged.

The Hinton Report (AC3) does not conclude whether the Bowman and/or the Darrington pit did or did not have excavation below the maximum depth of excavation, nor does the Notice of Outcome (A2). The Notice of Outcome says, "The maximum depth of extraction has been reached in the Darrington pit site. It is recommended that the final rehabilitation be completed on the pit floor to ensure that the depth to the water table is not violated." This statement implies that the excavation is below the seasonally high water table, which is the alleged contravention.

Conclusion of Analysis. The applicants' reading from piezometer "I" indicates excavation below the limit which is 1.5m above the seasonally high water table. This is direct evidence of the depth contravention. The Hinton Report states that backfilling is needed to fill to 1.5m above the water table, which implies that the excavation was below the allowed level. The Notice of Outcome is worded in a way that avoids stating explicitly whether there is a contravention, while at the same time implying that there is a contravention. The reasonable conclusion from the evidence is that the allegation is true.

Allegation A3 (AC4): The damage/destruction to the woodlot

MNR Observation/Conclusion. "A portion of the woodlot was removed under the authority of the Pits and Quarries Control Act prior to the passing of the Aggregate Resources Act. The operator of these sites volunteered to protect this woodlot by identifying it on the replacement site plans. Under the current site plan, no further excavation is to occur in the woodlot."

Analysis. The Hinton Report states that "it is apparent that the woodlot at the north end of the Bowman pit (5569) has been reduced in size and excavation has occurred." This establishes the fact that this woodlot damage/destruction took place. Hinton's interview with the operator (Murray Group) confirms that the woodlot had been removed. These observations confirm the Applicants' claim that (part of) the woodlot was removed.

In Hinton's same interview, the operator stated that the removal occurred "approximately 10 years ago under the Pits and Quarries Control Act." If the operator's statement is true, and no more woods were removed since 1993 (when the Pits and Quarries Control Act was last in force), the allegation can be dismissed. But if their statement is false, the allegation is true. So the question is: What evidence is there to determine the date of the most recent removal or destruction of (parts of) the woodland?.

It should be observed that the site plan of 1993, which took effect after expiry of the Pits and Quarries Control Act, shows the larger woodlot. So, assuming that the site plan is correct, it implies that the allegation is true.

The conclusions of the Hinton Report regarding this allegation are significantly based on interviews with MNR Aggregate Resource Officer Mr. Warren Knight. There is a conflict of interest by Mr. Knight arising because if this alleged contravention (A3) is seen to have occurred, it will imply that Mr. Knight did not take appropriate action in allegation A11 (see below). In other words, Mr. Knight will be showing himself to have not taken appropriate action at an earlier time if A3 is shown to be a contravention.

The Hinton Report states, "Knight MNR, Guelph office confirmed the Murray Group's explanation of the woodlot removal", where this explanation is that the woodlot was removed under the authority of the Pits and Quarries Control Act. The Hinton Report quotes Mr. Knight as saying "The woodlot was removal [sic] from the site under the authorization of the old PQCA site plan."

It is unlikely that Mr. Knight was well enough acquainted with the history of the site to confirm or deny what may or may not have happened there six or more years previously, i.e., in 1993 or before. (Note: in AC5, IF2, the Hinton Report records that the operator indicated that the wetland removal was approximately ten years ago, i.e., in approximately 1989.) The fact is, Mr. Knight was only given MNR responsibility for the Bowman Pit complex in 1997 and, as he stated personally to the applicant, Mr. Holt, in fall 1998, he did not know the site well. It seems clear that he did not have first hand knowledge of when the woodlot was removed. Perhaps he was repeating what the operator told him. It seems fair to conclude that Mr. Knight's "confirmation" of the operator's statement should be discounted. The only remaining evidence for the MNR conclusion that the "woodlot was removed under the authority of the Pits and Quarries Control Act" is the statement of the operator.

The Hinton Report states that "The site investigation of July 12 and 13, 1999, indicated that the trees within the woodlot had overgrown overburden on them and that trees have been pushed over". This confirms that overburden was dumped into the woodlot and it confirms that trees had been pushed over, as per the Applicants' allegation. It confirms that the woodlot had been damaged. The Hinton Report continues to say "This did not happen recently", but gives no explanation of whether "recently" means within the month, the year or the decade. The contravention could have happened in 1994, in which case there would have been five years of subsequent growth, which could be a great quantity of growth.

(See also the related analysis of A7 (AC4) which is another part of the allegation that part of the woodlot was removed.)

Conclusion of Analysis. The MNR conclusion fails to directly address the allegation of whether there was illegal woodlot damage. Instead, it repeats the operator's claim that part of the woodlot was removed some years ago. This claim is not substantiated. The MNR conclusions are biased and unreasonable. It seems surprising that the MNR conclusion includes the operator's claim to have "volunteered to protect" the woodlot.
 
 

Allegation A4 (AC5): The damage/destruction to a Provincially significant wetland

MNR Observation/Conclusion. "Excavation at the edge of the wetland occurred under the authority of the Pits and Quarries Control Act prior to the passing of the Aggregate Resources Act. The Operator of these sites volunteered to protect this wetland by identifying it on the replacement site plans. Under the current site plan, no further excavation is to occur in the wetland."

Analysis. The Hinton Report notes that, according to the Limnoterra report, the wetland should be considered to be Provincially Significant.

The MNR investigator (Anne Hinton) asked a biological expert, Daryl Coulson of MNR, to investigate the wetland on the site. Mr. Coulson produced a report for Ms. Hinton based on his visit of 5 July 1999 to the Bowman and Darrington pits, accompanied by MNR Officer Denny Novak. Ms. Hinton's notes [1549] state that she received this report on 6 July 1999. In spite of Freedom of Information requests, Coulson's Report was withheld from the public by the MNR until September 2000.

The Hinton Report quotes Mr. Coulson's report as saying "there appeared to be a former wetland habitat in an area measuring approximately 3m wide by an estimated 10m in length with 1+ m of relatively recent topsoil fill." Hinton goes on to say, "Additional data would confirm this". In other words, MNR biologist Coulson provided direct evidence that the wetland was recently damaged, thus indicating that this allegation (A4) is true, and that the damage did not occur years ago.

The Hinton Report records (AC5 IF2, IF3, & IF3) interviews with the operator (Murray Group) and then with Mr. Knight, and it records the results of a field inspection by Hinton, Knight and Selby. The Murray Group stated (IF2) that "the woodlot/wetland complex had been removed approximately 10 years ago under the Pits and Quarries Control Act", which would have been in approximately 1989. The interview with Knight (IF3) "confirmed the Murray Group's explanation of the woodlot/wetland encroachment". Please refer to the Applicant Commentary on Allegation A3, which explains Mr. Knight's conflict of interest and his lack of knowledge about these pits before he was given responsibility for them in 1997. Hence, Mr. Knight's confirmation should not be considered to be evidence.

The field inspection by Hinton, Knight and Selby (IF4) "indicate that recent encroachment in the wetland had not occurred." It should have noted that Knight and Selby have conflicts of interest because if this allegation (A4) is seen to be true, they will by implication have failed to act in accordance with A11 (see below). There is no indication of whether "recent" means a month, a year or a decade. Note that their statement is a direct contradiction of that by MNR biologist Mr. Coulson.

The Applicants' photograph (Figure 10 in the Request for Investigation) shows that there are stock piles in the marked wetland (its boundary is marked by a blue ribbon in the photograph). This photograph is direct evidence of wetland damage.

Applicants' Figure 10. Stockpiles in wetland. The blue circle shows a blue plastic ribbon which is attached to the small tree to mark the edge of the Provincially Significant wetland. Earth piles, on both sides of the ribboned tree, have been dumped into the wetland. This dumping damages the wetland.
 
 
 
 

Conclusion of analysis. Mr. Coulson, as an expert and as MNR biologist, was the only person providing information who did not have a conflict of interest, and his evidence was ignored. The Notice of Outcome conclusion that "The operator of these sites volunteered to protect this wetland by identifying it on the replacement site plans" is gratuitous. The Notice of Outcome conclusion that "Excavation at the edge of the wetland occurred under the authority of the Pits and Quarries Control Act prior to the passing of the Aggregate Resources Act" is not reasonable and directly contradicts expert opinion. The MNR overall conclusion that there is "no evidence to support the alleged contraventions" is wrong.

Allegation A5 (AC7): Stockpiles located in the wrong location

MNR Observation/Conclusion. "The stockpiles that are shown on the approved site plan are in compliance."

Analysis. The following paragraph is from MNR biologist Coulson's report, based his site visit on July 5 1999. This report was produced for Ms. Hinton:

"The second area of concern were the topsoil/subsoil piles (est. 5+m in height) along the south-west edge of the extraction area where stretches of the piles had the outside edge coincident with the top of bank of Carroll Creek valley. Without any setback in these areas there was considerable erosion and resulting sedimentation in the adjacent forest and wetland. I would expect the site plan to have had some requirements for setbacks in these areas in order to prevent such disturbances."

The stock pile is in non-conformance (being in the setback area). It is causing disturbance to the off-site Provincially significant wetland.

This stock pile violation was present at the time of the Hinton investigation, but is not reported by it. This violation is in the vicinity of stock pile violation C16 shown in the Applicants' Figure 11A.
 
 

Applicants' Figure 11A. Darrington Pit Sketch from September 1998 Compliance Assessment Report by Operator. This sketch was created by the operator. The operator has reported a stockpile violation, marked as C16 in the sketch, and a setback violation, marked as B7 in the sketch. (As well, a number of other violations are marked by the operator, including C11: Extraction Depth Violation of 4m, C18: Excavation Face Violation.)
 
 

Note that MNR withheld the Coulson report from the public until September 2000.

The violation still exists, as of September 2000. The operator has not reported this violation in his Conformance Reports, as is required by law.

Conclusion of analysis. The MNR conclusion is not warranted. Mr. Coulson's report documents a violating stock pile, which is causing environmental damage.

Allegation A6 (AC8): Backfilling with material which is not inert

MNR Observation/Conclusion. "There was no indication that the backfilled material used on the sites was not inert. Material for backfilling, overburden from the site, is stockpiled on the site for this purpose. Apparent backfilling in the area of the "Crescent Pool" was actually the removal of a stockpile. Rehabilitation has also begun in this area."

Analysis. In Ms. Hinton's interview with Mr. Knight and Mr. Selby on 13 July 1999, 10:00 - 16:00 (Guelph office, site), Ms. Hinton asked Mr. Knight: "Where does the company get their backfill material?" Mr. Knight replied, "Clay, overburden comes from the centre of the Bowman site and also from the Bosomworth and Darrington sites... " Mr. Knight's statement is incorrect, misleading or perhaps just incomplete. During the summer of 1999, the operator, the Murray Group, regularly imported loads of backfill from off site, for example, from road maintenance and construction in the town of Elmira. These loads were dumped into the central and southern parts of the Bowman pit.

The MNR is still suppressing the part of the Hinton Report that gives the operator's statements made during this EBR Investigation, so the public cannot determine what these statements were and whether they were truthful.

The Hinton Report states: "Management of Surplus/Waste Materials Generated through Road Maintenance and Construction, September, 1988 -- Ontario Ministry of the Environment, Water Management Branch --- this publication clarifies the regulatory requirements of the Environmental Protection Act and Regulation 347 with respect to the management of surplus/waste material generated through road maintenance and construction." This same document on Management of Surplus/Waste states in Section II (Inert Fill), part II(b)(1): "The inert fill definition would not include construction debris (plaster, plastic, metal, wood), tree branches, trunks lumber, etc."

The Applicants' Request for Investigation states: "In the Bowman pit proper, in the south part, there are piles of imported materials (primarily earth), which contain various matter such as plastic pipes, metal pipes, pieces of concrete, etc." Figure 1 (below) is a photograph of that part of the Bowman pit site taken 16 May 1999. The photograph shows metal pipes half buried in piles of material brought to the site from road construction activities. Clearly this fill material is not inert.

Figure 1. Photograph of non-inert fill, in south part of Bowman pit. Photograph taken 16 May 1999. View is to the north. Trees on right are central woodlot. [Image 29]

The MNR observations/conclusions (notably, regarding where the backfilling was stockpiled, where the "apparent" backfilling took place and about "rehabilitation") are largely irrelevant to the question, which is: Was inert fill being used? MNR's remarks seem intended to exonerate the operator, while not answering the question.

Conclusion of analysis. The MNR conclusions are largely irrelevant to the allegation. Apparently, the investigation failed to determine that the operator regularly imports backfill material from off site and failed to inspect the areas of the site containing imported backfill material. It failed to determine if the imported material is inert. Therefore, its conclusion that "There is no indication that backfilled material used on the sites was not inert" is a mistake in fact.

Allegation A7 (AC4): The destruction/damage to the woodlot (as evidenced by standing trees within 5 metres of excavation face)

The Notice of Outcome prefaces allegation A7 with this description of Provincial Standards:

"AGGREGATE RESOURCES ACT - ONTARIO REGULATION 244/97 AMENDED TO O. REC. 52/98

Section 7, Application for licenses, aggregate permits or wayside permits and the operation of pits and quarries shall be in accordance with "Aggregate Resources of Ontario: Provincial Standards Version 1.0" published by the Ministry of Natural Resources.

This regulation requires that the operation of aggregate sites comply with provincial standards."

MNR Observation/Conclusion. "A portion of the woodlot was removed under the authority of the Pits and Quarries Control Act prior to the passing of the Aggregate Resources Act. The operator of these sites volunteered to protect this woodlot by identifying it on the replacement site plans. Under the current site plan, no further excavation is to occur in the woodlot. The provincial standards were not contravened."

Analysis. Provincial Operational Standard 5.5 requires all trees within 5m of an excavation to be removed. The Applicants' Request for Investigation (its Section 6) records that the excavation was observed to be less than 3m from the trees in the woodlot. This was not listed in the Hinton Report (AC6, Applicant's Evidence). Given that the trees stand 3m from the excavation, it follows that either the excavation is a contravention or that the trees should be removed, which would also be a contravention. Neither the Hinton Report nor the Notice of Outcome record this situation.

The excavation next to the trees was done in 1998-1999. This can be seen in the photographs submitted by the applicants (Request for Investigation photograph P1 on 26 Sept 98 is before the excavation and photograph P2.1 on 11 Feb 1999 is after the excavation). Also, the Applicants' photograph in Figure 5 shows the trees on the edge of the excavation, less than 3m from the pit face.
 
 

Applicants' Exhibit P1. Photograph of Bowman Pit Crescent Pool area (26 Sept 98). Photograph taken from near Point A (Figure 4). Note depth of excavation.
 
 
 
 

Applicants' Exhibit P2.1. Photograph of Bowman Pit Crescent Pool area (11 Feb 99). Photograph taken from near Point A (Figure 4). Marker Tree is in right background. Exhibits P2.1, P2.2, P2.3 and P2.4 are photographs of the Crescent Pool for the period 11 Feb 99 to 13 Mar 99. See also Figures 7 and 8 (in the Request for Investigation) for photographs of this area on 17 Mar 99 and 20 Mar 99, respectively.
 
 
 
 
 
 

Applicants' Figure 5. Trees precariously near the 6m pit face (10 Apr 99). Trees are less than 3m from the pit face. The pool at the bottom left shows the water table height.

Conclusion of Analysis. The MNR conclusion fails to address the issue. The issue is: Was the excavation within 5m of the woodlot? The applicants' photographs and observations indicate that this is true, and in turn that the provincial standard was violated.

The MNR conclusion that the operator "volunteered to protect this woodlot" has little to do with the allegation; one wonders why it was included here.

The MNR conclusion that "the provincial standards were not contravened" is not reasonable and does not follow from the evidence. The overall Notice of Outcome conclusion that there was "no evidence to support the alleged contraventions" is incorrect.

Allegation A8 (AC6): Progressive rehabilitation not being completed

The Notice of Outcome prefaces allegation A8 with this note about the Aggregate Resources Act:

"AGGREGATE RESOURCES ACT

Section 57(3) Every person who contravenes this Act or the regulation is guilty of an offence.

Section 48(1) Every licensee and every permittee shall perform progressive rehabilitation and final rehabilitation on the site in accordance with this Act, the regulations, the site plan and the conditions of the licence or permit to the satisfaction of the Minister.

Section 48(1) requires compliance with progressive and final rehabilitation of sites in accordance with the Act, regulations, site plan and provincial standards."

MNR Observation/Conclusion. "Rehabilitation is progressing on all the sites. There is no need to enforce this section."

Analysis. The Hinton Report records that Aggregate Resources Act R.S.O. 1990 - Section 1 (1) states: "'progressive rehabilitation' means rehabilitation done sequentially, within a reasonable time, in accordance with the Act ..." On July 12 and 13, Ms. Hinton interviewed Mr. Alistair MacKinnon, MNR Aggregate Resources Policy Officer (acting). She asked him "How often has an order for progressive rehabilitation been issued?" His answer was "not aware of any -- not common". This indicates that the MNR does not enforce this part of the Aggregate Resources Act --- or else that all pits are always in conformance with this Section of the Act, which seems unlikely.

The Hinton Report states (AC6 IF5) that "A field inspection with the Murray Group indicated that progressive rehabilitation has been started in the area of the woodlot and at the north end of both the Darrington Pit (19333) and the Bowman Pit (5569)." This inspection was during Ms. Hinton's visit to the pit on July 12 and 13, 1999. Any such rehabilitation in the Bowman pit that may have been observed during Hinton's investigation did not exist at the time of the Applicants' Request for Investigation, as can be seen in the Applicant's photograph in Figure 5, taken 10 April 1999.

The only rehabilitation that had taken place on the Darrington pit is in its south end. There has been repeated confusion by the MNR about land adjacent to, and off-site from, the Darrington pit (to its northwest) which was covered by new earth and planted in July-August 1998 (see photographs 13A and 13B in the Request for Investigation). In his letter of 13 August 1998, Mr. Knight incorrectly states that pit rehabilitation had occurred there (northwest and off-site, which he incorrectly called the "northeast corner" of the pit). As photographs taken by the Hinton investigation show, there was no rehabilitation in the north, northwest, or northeast of the Darrington pit at the time of her investigation.

The applicant's Request for Investigation reported that the only rehabilitation that ever occurred in the Bowman pit was done in the northern corner of the site, and this rehabilitation was subsequently ruined by placing stock piles and an asphalt plant at the location (as recorded in Bowman pit Compliance Assessment Report, CAR). The photographs taken by the Hinton investigation show no rehabilitation in the Bowman pit and corroborate the applicants' allegation.

Conclusion of Analysis. The applicants' evidence indicates that there had been no rehabilitation in the Bowman pit (except that which was subsequently ruined). The applicants allege and the Hinton investigation photographs indicate that the Hinton Report statement that there was rehabilitation in the north end of the Darrington pit is incorrect. Perhaps the most important conclusion is that the MNR does not enforce rehabilitation, and thereby allows operators to ignore the corresponding Section of the Aggregate Resources Act.

Allegation A9 (AC9): Failure of adherence to Compliance Assessment Reports (CARs)

The Notice of Outcome prefaces allegation A9 with this note about the Aggregate Resources Act:

"AGGREGATE RESOURCES ACT

Section 57(3) Every person who contravenes this Act or the regulation is guilty of an offence.

Section 15.16 (b) A licence shall be deemed to have been suspended if, the licensee's annual compliance report discloses a contravention of this Act, the regulation, the site plan or the conditions of the licence and the licensee fails to Comply with subclause (5)(a)(1) or (ii).

Section 15-16(b) of the Act indicates the importance of rectifying non-compliance, as indicated on the Annual Compliance reports by the specified date. If the non-compliance is not rectified by this date, the Licence is suspended."

MNR Observation/Conclusion. "There was no evidence found that indicated that the remedial action indicated on the CARs had not occurred by the specified time. The allegation of backfilling in the "Crescent Pool" to hide non-compliance was actually the removal of a stockpile."

Analysis. Ms. Hinton interviewed Mr. Warren Knight, MNR Aggregate Resources Officer (ARO) and Mr. Craig Selby, MNR District Officer on July 13, 1999. She asked the following: "On both Compliance Assessment Reports 1997, 1998 for the Darrington site, indicated that there were areas where the final excavation depth had been exceeded and that back filling was necessary. Do you know if the remedial action back filling took place by the indicated date?" Their answer was, "No. 1997 CARS received and filed -- not inspected..." Similarly, when asked about remedial actions for the 1997 and 1998 Bowman CAR violations, they said they didn't know. In answer to an earlier question, Mr. Knight stated that the means of rectifying a reported non-compliance was "ARO checks site to see if deadline has been met". Clearly this was not done. At the applicant's (Holt's) interview with Mr. Knight in Fall 1998, Mr. Knight said he had not read the 1997 and 1998 CARs.

The MNR conclusion states that "The allegation of backfilling in the 'Crescent Pool' to hide non-compliance was actually the removal of a stockpile". This statement is largely irrelevant to Allegation A9. This "conclusion" does not address the question in this allegation, which is this: Did the operator adhere to the CARs and did the operator rectify non-compliance on time?

It appears, from the Coulson Report, that there has been a non-conforming stockpile in the Darrington pit. This stockpile is apparently still present (in September 2000). Thus, it appears that Allegation A9 is true.

Conclusion of analysis. The MNR conclusion that there was "no evidence" of failure to take remedial action on time for the CARs reflects the fact that MNR had no knowledge of the contents of the Conformance Assessment Reports --- they had not even read the CARs.

Allegation A10 (AC2): Excavation into the water table causing harmful alteration, disruption or destruction of the downstream cold water fishery of Carroll Creek

The Notice of Outcome prefaces allegation A9 with this note on the Fisheries Act:

"FISHERIES ACT

Section 35(1) No person shall carry out any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat.

This Section of the Fisheries Act provides protection to fish habitat."

MNR Observation/Conclusion. "The distance from the cold water Carroll Creek to the area of excavation and the absence of below water table excavation indicated that there has been no harmful effects on this stream from the aggregate extraction operation."

Analysis. E-mail of 8 February 1999 from MNR biologist Mr. Daryl Coulson to MNR personnel Mr. Drew Cherry and Mr. Warren Knight states "The concerns raised with respect to impacts to Carroll Creek coldwater fisheries are valid, if in fact there is a proposed extraction below water-table at this site." Mr. Coulson is referring to possible excavation in the Darrington deep pit area.

An Information Briefing Note of 22 February 1999, directed to Ted Arnott, M.P.P, Wellington, and approved by Mr. Craig Selby, states: "Mr. Holt is concerned that excavating to 362 masl [meters above sea level] will disrupt the discharge of ground water to Carroll Creek and there will be a warming of the water before it enters the creek. These impacts are possible if extraction takes place into the water table." Again, the excavation referred to is the Darrington deep pit area.

Mr. Coulson's and Mr. Selby's remarks confirm that they believe there is danger to the Carroll Creek fishery if there is excavation below the water table in the Darrington deep pit.

The Applicants' Request for Investigation says "The current (April 1999) excavation in this [Darrington] deep pit is into the water table. This is implied by the April 18, 1999 piezometer reading and the fact that drought conditions have depressed the current water table..."

According to the Hinton Report, she had a "conversation with Shawn Kinney, Hydrogeologist, Northern Region, Ministry of the Environment ... Even using the most direct route there would not be any adverse effects on the Carroll Creek". There is no record of this conversation, other than the 7 lines she records in her report. Note that Mr. Kinney did not visit the site. Note that the site has a highly irregular underground configuration, so predictions are difficult.

The investigation ignored the Applicants' suggestion in their Request for investigation to contact these people, who are experts in water tables and are familiar with this area:

"Mr. Jack Imhoff, MNR, 1 Stone Road, Guelph, Ont N1G 4Y2, telephone (519) 826-4938, has extensively studied Carroll Creek and is an expert on water tables and their interaction with coldwater streams. ...

Mr. Dwight Boyd, hydrogeologist with Grand River Conversation Authority (GRCA) who is an expert in depth of water table in Elora area, 400 Clyde Road, Box 729, Cambridge Ont N1R 5W6, telephone (519) 621-2763 GRCA."

Conclusion of analysis. The evidence indicates that there is a potential danger to the Carroll Creek fishery. Damage, or potential damage, to a coldwater creek is a serious matter. Direct study by an expert was the appropriate investigatory action, but this was not done. The evidence does not lead to MNR's conclusion of "no harmful effects on this stream ".

Allegation A11 (AC10): The Ministry of Natural Resources, Guelph District, has not responded to the allegations of non-compliance of the operator as identified by the applicants to MNR

MNR Observation/Conclusion. "The MNR, Guelph District Office responded to all the correspondence of the Applicant with the exception of the March 3, 1999 letter which had never been received by the Ministry. The former Darrington Pit site plan was discarded once a new plan was fully approved. This practice complies with ministry policy."

Analysis. The first thing to note about this allegation is that it puts the MNR in the position of investigating the MNR, with immediate and obvious conflicts of interest. It seems clear that the investigating panel, who decided upon the contents of the Notice of Outcome, and the accused MNR personnel, Mr. Selby and Mr. Knight, were well acquainted and that there were various interactions between the members of the panel and the accused personnel. Note that Mr. Selby's associate, Mr. Kerver, was on the panel. None of these conflicts were noted by the investigation and there is no indication that any action was taken to ameliorate these conflicts.

The EBR Request for Investigation by the applicants was submitted only after many queries and complaints to the MNR, written to Mr. Warren Knight (Aggregate Resources Officer) and to Mr. Craig Selby (District Officer), as well as very many more telephone calls. It was only after repeated lack of action on the part of MNR that the applicants submitted an EBR request to attempt to deal with the environmental problems which they perceived.

The applicants' submitted letters, L8.1, L8.2, L8.3 and L8.4 written to Mr. Knight and Mr. Selby, document many of the same concerns that eventually became allegations in the applicants' EBR Request for Investigation. MNR wrote pro forma letters responding to three of these letters, but took no corrective action. MNR states that they did not receive the fourth of these letters.

MNR's Notice of Outcome states: "The MNR, Guelph District Office responded to all the correspondence of the Applicant with the exception of the March 3, 1999 letter which had never been received by the Ministry." It does not state whether these letters address the issues raised by the Applicants.

The lack of responsiveness by the MNR is most clearly seen in the attempt by the applicant (Mr. Holt) to obtain a copy of the Darrington site plan. These plans are supposed to be publicly available. The applicant exhausted every reasonable means of attempting to get a copy (phoning Mr. Knight, visiting Mr. Knight, asking the Murray Group's engineer (Mr. George Davis), asking the Pilkington Township office, asking the county office, and making a Freedom of Information request to MNR). In the end, Mr. Warren Knight destroyed the requested 1998 Darrington site plan, after Mr. Holt repeatedly requested it under FOI. The story of the attempt to access this site plan is recorded separately in a document written by Mr. Holt called "Searching for the Darrington Site Plan".

The MNR Notice of Results states "The former Darrington Pit site plan was discarded once a new plan was fully approved. This practice complies with ministry policy." Repeated requests to the MNR to obtain a copy of this "policy", including formal requests under the Freedom of Information Act, have yielded nothing. In a letter of 29 September 1999, Ms. Wendy Craig of MNR, sent the applicant the retention policy of MNR. This retention policy requires retention of site plans for eight years. The retention policy indicates that the MNR destroyed the site plan in violation of their own policy. Mr. Knight violated the Freedom of Information Act by destroying the plan after it had been formally requested under FOI.

Mr. Knight and Mr. Selby are in a conflict of interest, because they are the subject of Allegation A11, while at the same time they were the key providers of information to Ms. Hinton on a number of other allegations. Their conflict of interest is that: if these allegations were shown to be true, Mr. Knight and Mr. Selby would be shown to have failed to respond appropriately on Allegation A11. There is no record that these two people informed Ms. Hinton of their conflict nor that Ms. Hinton took account of their conflict of interest in her investigation.

Quite the contrary. According to documents received by means of FOI, the following occurred. Mr. Selby was one of the first to be informed of the EBR investigation. On May 28, 1999, Don Yarrington sent email to Mr. Selby (with copies to Scott Poser and Mike Morencie) saying "Craig, further to our telephone conversation this morning, I was just advised that Anne Hinton out of the Northwest Region ESSU shop has been assigned the task of conducting the above mentioned [EBR] investigation..." On June 3, 1999, Scott Poser, Coordinator for the investigation, sent email to Mr. Selby saying "Today I put in the mail a copy of the application package for your information. This will assist you in your communication with Anne Hinton" (with email copies to Anne Hinton, Don Yarrington and Mike Morencie). On June 2, 1999, Selby telephoned Hinton about the investigation; Hinton's hand-written notes on this conversation contain the phrase "opportunity to review findings with District before submitted"; apparently Selby is asking to review Ms. Hinton's findings before they are submitted. This seems to be a highly inappropriate request on the part of Mr. Selby, especially considering his conflict of interest. The Hinton report states that Mr. Selby had visited the Bowman pit on 22 April 1999, and thus he was necessarily well aware of his involvement in enforcement there.

Conclusion of analysis. Mr. Warren Knight, MNR, destroyed the 1998 site plan for the Darrington pit after it was requested numerous times by applicant Mr. Holt. This violated the Freedom of Information Act. This violated MNR retention policy number 1588 (provided to applicants by Ms. Wendy Craig). Despite the claim in the Notice of Outcome that MNR policy supports such destruction, repeated attempts including an FOI request have failed to produce a copy of such a policy. Any such policy would violate common sense in that documents such as site plans have a legal significance measured in years. The MNR conclusion that "This practice [of destroying the site plan] complies with ministry practice" is incorrect and its intention is apparently to exonerate Mr. Knight's actions.

MNR personnel Mr. Craig Selby and Mr. Warren Knight were in a conflict of interest in this investigation, yet this conflict was not stated or recognized, while at the same time, various "confirmations" by these two people were key evidence used in conclusions in the Notice of Outcome.

The MNR conclusion that "Guelph District Office responded to all the correspondence of the Applicant" is largely irrelevant --- what is important, is what action, if any, did they or should they have taken. This MNR conclusion is apparently intended to exonerate the District Office's actions or lack thereof.
 
 

Overall Conclusion and Proposed Action

The Notice of Outcome gives this overall conclusion: "The Ministry has concluded that there is no evidence to support the alleged contraventions under the Aggregate Resources Act and the Fisheries Act."

The Notice of Outcome proposes these actions: "The Ministry does recognize the importance of continuing and improving upon the monitoring of the water table and the final depth of excavation elevations. The Ministry will monitor the rehabilitation of sites where the final excavation depth and limit have been reached and will encourage the operator to finalize the rehabilitation of these areas at the earliest opportunity."

Analysis. The MNR conclusions about "recognizing the importance" of monitoring the water table, the final depth of excavation and encouraging rehabilitation are signals to the operator to bring the site into conformance --- written in such a way as to mask the conclusion that contraventions were observed to exist.

There is a great deal of evidence indicating contraventions, including photographs and measurements. The Notice of Outcome conclusion that there is "no evidence" to support the alleged contraventions is clearly wrong, and results from mistakes in fact, mistakes in law and improper purpose.

The MNR investigation failed to collect essential evidence needed for this investigation, such as measurements of the elevation of the water table.

The Hinton Report makes a number of unreasonable conclusions in favour of the operator and in favour of the MNR. Several of these conclusions are based on information provided by people with conflicts of interest.

The MNR destroyed a piece of evidence, 1998 Darrington pit site plan.

The MNR withheld the documents which reveal what actually happened in the investigation --- who was talked to, what evidence was gathered and how it was used --- for a year. It appears that this secretive behaviour was intended to deny the public the truth about the investigation. During this time the operator has literally buried much of the evidence of the violations --- under backfill and belated rehabilitation.

Conclusion of analysis. This analysis shows that MNR did not carry out a reasonable and objective investigation of the alleged contraventions. The MNR Notice of Outcome for the investigation does not explain how and why the decisions were made to people affected. The decisions and conclusions of the investigation were unreasonable, and involved unfair and illogical interpretations of standards and legislation. The investigation was improperly discriminatory by depriving the applicants for this investigation of a reasonable investigation under the Environmental Bill of Rights. The investigation contains numerous mistakes of fact and mistakes of law. It involved the improper purpose of attempting to exonerate MNR employees of failures such as destroying a site plan which had been requested under Freedom of Information and which was supposedly protected by the MNR document retention policy. In brief, the investigation's procedures were incorrect and its conclusions were not reasonable.