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HomeMy WebLinkAboutPD-258-88 DN: 258-88 J, TOWN OF NEWCASTLE REPORT File # 3S"-31 ,2r Res. # By-Law # MEETING: General Purpose and Administration Committee DATE: Monday, December 12, 1988 REPORT #: PD-258-88 FIE #: PLN 21.1 SUKECT: BILL 170 - AN ACT TO REVISE SEVERAL ACTS RELATED TO AGGREGATE RESOURCES FILE: PLN 21.1 RECOMMENDATIONS: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report PD-258-88 be received; and 2. THAT the following resolution and a copy of this report be forwarded to the Association of Municipalities of Ontario, the Minister of Natural Resources and the Region of Durham as the Town of Newcastle's position with respect to Bill 170 - An Act to revise several Acts related to Aggregate Resources: "WHEREAS Bill 170 - An Act to revise several Acts related to Aggregate Resources addresses many of the inadequacies with existing Aggregate Resource legislation by providing more effective and realistic management of the Province's mineral aggregate resources; and WHEREAS Bill 170 provides for greater municipal input on proposed applications and Ministerial actions; stronger provisions related to the rehabilitation of excavated sites and the minimization of the adverse social and environmental impacts of mineral aggregate extraction; and financial compensation for municipalities affected by aggregate extraction operations; NOW THEREFORE BE IT RESOLVED THAT the Town of Newcastle supports Bill 170 in principle; and BE IT FURTHER RESOLVED THAT the Town of Newcastle recommends to the Minister of Natural Resources the following: 2 REPORT NO. : PD-258-88 PAGE 2 ------------------------------------------------------------------------------- 1) THAT Section 27, Subsection 1 of Bill 170 be amended to require the location of wayside pits and quarries to comply with relevant zoning by-laws; and 2) THAT Bill 170 be amended to state that funding provided to municipalities through the disbursement of the aggregate production levy is distinct from other sources of Provincial funding; and 3) THAT, prior to being approved, the Regulations regarding the proposed annual licence fee and disbursement formula should be reviewed in conjunction with upper-tier and local municipalities: a) to determine a new value for the proposed production levy to more adequately reflect current costs faced by municipalities; b) to provide for a periodic review of the value of the production levy; c) to provide for increased financial compensation to upper-tier municipalities, including an equitable disbursement of revenue between upper-tier and local municipalities; d) to provide for financial compensation to municipalities which are directly and adversely impacted by aggregate extraction in adjoining municipalities; e) to exempt municipalities from paying that portion of the annual licence fee on aggregate produced by the municipality which would eventually be returned to the municipality under the proposed disbursement formula. 1. BACKGROUND 1.1 On September 12, 1988, Council considered correspondence from the Honourable Vincent G. Kerrio, Minister of Natural Resources, forwarding a copy of 'Bill 170 - An Act to revise several Acts related to Aggregate Resources' . Council resolved (Resolution #C-620-88) to refer the correspondence to the Director of Planning and the Director of Public Works, for a joint report to be presented to the General Purpose and Administration Committee containing a draft resolution that can be forwarded to the Association of Municipalities of Ontario and the Ministry of Natural Resources. REPORT NO. : PD-258-88 PAGE 3 ------------------------------------------------------------------------------- 2. BILL 170 2.1 Purpose of the Act 2.1.1 Bill 170 is intended to replace the Pits and Quarries Control Act, Part VII of the Mining Act and the Beach Protection Act. Its stated purpose is the following: i) to provide for the management of aggregate resources; ii) to control and regulate aggregate operations on Crown and private lands; iii) to require the rehabilitation of land from which aggregate has been excavated; and iv) to minimize adverse impacts on the environment. In this regard, Bill 170 proposes a number of significant reforms to address many of the inadequacies associated with the existing legislation. 2.2 Aggregate Licences & Permits 2.2.1 In general terms, a Licence must be obtained from the Province for aggregate extraction operations on all lands except Crown lands. A Class "All Licence is required for more than 20,000 tonnes of annual production, while lower levels of production require a Class "B" Licence. 2.2.2 An Aggregate Permit is required for aggregate extraction operations on Crown Lands. A Wayside Permit can be obtained by a public authority for a temporary project such as road construction where aggregate is not readily available from a nearby licensed source. The Permit will expire with the completion of the project, or after 18 months. 2.2.3 Applications for Class "All & Class "B" Licences, Wayside Permits and Aggregate Permits must be accompanied by site plans providing details in respect of existing features, extraction operations, and progressive rehabilitation and final rehabilitation plans. The level of detail required varies with the type of application, with a Class "A" Licence requiring the greatest detail. A Class "All Licence Application must 4 rV ��� REPORT NO. : PD-258-88 PAGE 4 ------------!,------------------------------------------------------------------- also be accompanied by a report providing information in respect of such matters as the suitability of rehabilitation plans, social and economic impacts, and the main haulage routes and proposed truck volumes. The level of supporting information required for all types of applications is greater then currently required under the Pits and Quarries Control Act. 2.2.4 The Minister can require a licensee to amend a site plan and can add, vary or rescind a condition of a licence, aggregate permit or wayside permit. Each licensed pit or quarry will be subject to an annual review to determine compliance with the legislation, the site plan and the conditions of the licence. Municipal comments will be considered as part of the review. With every fourth annual review, each municipality will be requested to provide comments on each licensed pit and quarry within its boundaries. The Minister may suspend a licence or permit for up to six months for any contravention of the Act, the regulations, the site plan or the conditions of the licence or permit. The licence or permit may be revoked after 6 months if the licensee or permittee has not taken the action required by the Minister. 2.3 Notice to Municipalities 2.3.1 Bill 170 entitles municipalities to receive notice of a wider range of applications and Ministerial actions than is currently provided for by the Pits and Quarries Control Act. 2.3.2 Upper-tier and local municipalities are to receive notice of the following: applications for a pit or quarry licence or wayside permit; proposed amendments to a licence's conditions or site plan; a proposal to grant a licensee or permittee relief from the regulations; or a proposal to deem an excavation not to be a pit or quarry for the purposes of the Act. A municipality's comments will be considered by the Minister when reaching a decision on these applications. . . .5 REPORT NO. : PD-258-88 PAGE 5 ------------------------------------------------------------------------------- 2.3.3 Notice for information purposes is also to be provided to upper-tier and local municipalities in respect of the following: the issuance, transfer or suspension of a licence; the issuance, suspension or revocation of a wayside permit; the amendment of the conditions of a licence or wayside permit; or the amendment of a licence's site plan. 2.4 Applicability of Municipal Documents 2.4.1 Bill 170 is much more specific than the Pits and Quarries Control Act in defining the relationship of the new Act and its regulations to municipal documents. In this respect, Bill 170 makes a distinction between by-laws which endeavour to regulate or prohibit the operation of a pit or quarry and zoning by-laws which regulate the location of aggregate operations. 2.4.2 Bill 170 states that any municipal by-law which purports to prohibit the carrying on or operation of a pit or quarry, including a wayside pit or quarry, is not applicable to the extent that it conflicts with the Act and its regulations. As well, the Act states that, in the event of a conflict with any municipal by-law, official plan or development agreement, the provisions of the Act and its regulations shall prevail. 2.4.3 The provisions of Bill 170 do not appear to over-ride any existing municipal powers, inasmuch as the ability to prohibit or regulate the operation of a pit or quarry does not currently lie with municipalities but is within the purview of the Ministry of Natural Resources. Rather, the new Act is providing a clearer and more comprehensive delineation of the respective powers of municipalities and the Ministry. 2.4.4 As with the Pits and Quarries Control Act, Bill 170 requires the location of a proposed pit or quarry to comply with municipal official Plan and zoning by-laws prior to the issuance of a licence. In this regard, the ability of a municipality to regulate the location of aggregate extraction operations is to continue. . . .6 90 ) REPORT NO. : PD-258-88 PAGE 6 ------------------------------------------------------------------------------- 2.4.5 Bill 170 would permit the Minister to issue a wayside permit at any time whether or not its location complies with all relevant zoning by-laws. This appears to be at odds with another provision in the Act which requires a Minister to have regard for municipal comments in considering whether to issue or refuse a wayside permit. 2.4.6 Furthermore, the Mineral Aggregate Resource Policy Statement, which was approved by the Lieutenant Governor in Council on may 9, 1986,states that wayside pits and quarries are to be permitted in all zoning categories, except in zones which are established to recognize existing development or areas of particular environmental sensitivity. In these latter zones, wayside pits or quarries may be prohibited. By-law 84-63 only permits wayside pits or quarries in "Agricultural (A)" zones. 2.4.7 This exception for wayside pits and quarries proposed Bill 170 does not appear to be consistent with either the Mineral Aggregate Resource Policy Statement or the general intent of the new legislation. Bill 170 should be amended so that it treats wayside pits and quarries in a manner similar to licensed pits and quarries by requiring their location to comply with relevant Official plans and zoning by-laws. 2.5 Production Levy 2.5.1 Bill 170 requires every licensee, including municipalities, to pay to the Province an annual licence fee in an amount equal to the licence application fee ($200.) , or a 'rate-per-tonne-extracted' fee, whichever is greater. Every applicant for a wayside permit, including municipalities, will also be required, before the permit is issued, to pay to the Province a prescribed permit fee or a fee based on the maximum amount authorized to be extracted. 2.5.2 Bill 170 provides for the revenues generated from this annual production fee to be distributed on the basis of a formula to be prescribed by the regulations that accompany the Act. According to . ..7 REPORT NO. : PD-258-88 PAGE 7 ------------------------------------------------------------------------------- Ministry of Natural Resources staff, the production fee and distribution formula being considered are the same as drafted in 1979 when similar legislation was proposed. This would result in the Province collecting an annual production fee of 6 cents per tonne of aggregate produced with the revenue to be disbursed as follows: - 1 cent to the Province - 4 cents to the area municipality - one-half cent to the upper-tier municipality - one-half cent to the abandoned pits & quarries fund. 2.5.3 The municipal portion of the annual production fee is intended to compensate municipalities and their residents for the inconveniences associated with aggregate production. The Province is apparently not intending to restrict how municipalities use their share of the revenue. Under the formula discussed above, the Town of Newcastle and the Region of Durham would receive $85,515.64 and $10,689.46 respectively, based on 1987 aggregate production in the Town of 2,137,891 tonnes. 2.5.4 A number of concerns with the proposed annual production fee have been identified. The Region of Durham has argued that, because trucks hauling aggregate primarily use the Regional road network, the Region must bear significate road reconstruction and resurfacing costs which are not reflected in the disbursement formula currently being considered. A recent spot check by Town Staff has confirmed that most of the aggregate produced in the Town is transported along Regional Roads. 2.5.5 It is a matter of great concern that the value of the proposed annual production fee has not been increased since 1979 to reflect the inflated costs faced by municipalities over the past decade. The Association of Municipalities of Ontario, in its report on Bill 170, calculated that the production fee should be increased to 9 cents per tonne for 1988, assuming a 5% annual inflation rate since 1980. Use of the Southam Construction Index also produces a figure of 9 cents per tonne for 1988. The Region of Durham calculated that the fee should be . . .8 REPORT NO. : PD-258-88 PAGE 8 li ------------------------------------------------------------------------------- at least 12 cents per tonne to reflect both inflation and an increased Regional share of the levy without reducing the proportional share of other recipients. 2.5.6 Regional Council has passed a number of resolutions requesting the Ministry of Natural Resources to increase the annual production fee on aggregate producers to adequately compensate the Region for deficiencies in the Regional road network attributable to the transportation of mineral aggregates. Most recently, on November 16, 1988, Regional Council passed a resolution to advise the Ministry that it maintains this position, but that if the Ministry does not justify the new production fee in terms of road needs, that it recognize the important role the Regional goveernment has in the day-to-day activities of its.residents by increasing the proportion of the annual production fee allocated to the Regional municipalities resulting in a total fee of at least 12 cents per tonne, including an equivalent distribution of funds between the Regional and area municipalities. 2.5.7 The aggregate production fee is also conceptually flawed in assuming that the "producing" municipality bears the full impact of aggregate production. In the Township of Manvers there are major licensed aggregate operations just north of the Newcastle/Manvers boundary and accessed by Regional Road #20. Most aggregate is transported south from these pits to the Toronto market area. As a result, the Town of Newcastle and the Region of Durham bears the major adverse impacts as a result of this production but under the current fee disbursement formula, there is no consideration made for this. The Province should consider amendments to the fee disbursement formula to account for such situations where an adjoining municipality bears a significant and well-documented adverse impact. 2.5.8 Other concerns related to the new production levy are as follows: - Municipalities should be exempted from paying that portion of the production levy which will eventually be returned to them under the prescribed formula; 9 REPORT NO. PD-258-88 PAGE 9 ------------------------------------------------------------------------------- Bill 170 should clarify that funding provided to municipalities through the aggregate production levy is distinct from other sources of funding. 2.5.9 The annual licence fee and disbursement formula should be reconsidered by the Province in consultation with upper-tier and lower-tier municipalities to ensure that a fair, equitable and effective levy is collected and distributed in such a manner to meet the goals of this legislation. 2.6 Rehabilitation 2.6.1 Bill 170 provides greater detail and stronger provisions regarding the rehabilitation of excavated sites than the existing Pits and Quarries Control Act. As with the existing legislation, Bill 170 requires every licensee to maintain on deposit with the Province, security for the rehabilitated pit or quarry, with all or part of the security forfeited to cover the costs of rehabilitation by the Province. However, unlike the existing legislation, Bill 170 specifically requires every licensee and permittee to perform progressive and final rehabilitation. Portions of the deposit are refundable to the licensee or permittee as proof of progressive rehabilitation is submitted, while the total sum is refundable upon proof of final rehabilitation being submitted. If satisfactory progressive rehabilitation is not being performed on a site, the Minister may order a licensee or permittee to perform within a specified period of time, such progressive rehabilitation as is deemed necessary. The new legislation also empowers the Province to declare any pit or quarry to be abandoned with the consent of the assessed owner. A portion of the revenue from the proposed production levy is to be deposited in a special fund for the rehabilitation of abandoned pits and quarries. 3. CONCLUSIONS & RECOMMENDATIONS 3.1 Bill 170 addresses many of the inadequacies identified in the existing Pits and Quarries Control Act by providing for more effective and . . .10 REPORT NO. : PD-258-88 PAGE 10 ------------------------------------------------------------------------------- realistic management of the Province's mineral aggregate resources, including greater opportunity for municipal input, and by recognizing the need to balance the demand for aggregate resources with the need to minimize the adverse environmental and social impacts associated with aggregate extraction. The Association of Municipalities of Ontario has indicated support of Bill 170, in principle in recognition of the improvements offered over the existing legislation. 3.2 Despite these improvements however, Bill 170 still has a number of shortcomings, as discussed in this report, related to wayside pits and quarries and the proposed production levy to be prescribed by the Regulations accompanying the Act. Staff have prepared a resolution (see Recommendations - Page 1) which indicates support in principle for Bill 170, but which also indicates the Town's concerns with the proposed legislation. It is recommended that Committee recommend to Council that this resolution be adopted and forwarded, with a copy of this report, to the Association of Municipalities of Ontario, the Minister of Natural Resources, and the Region of Durham as the Town's position on Bill 170. Respectfully submitted, Recommended for presentation to the Committee - - --- - ---------------- Franklin Wu, M.C.I.P. Lawrence E. otseff mi Director of Planning & Development A* ive officer Chief mi i tratt Walter Evans, P.Eng. Director of Public Works ,TAS*FW*jip *Attach. November 28, 1988