EBR Application for Review Request to Review Environmental Compliance Approval Cruickshank Construction Limited Elginburg Quarry, Kingston Decision Summary EBRO File No.: 16EBR001.R Issue: The Ministry of the Environment and Climate Change received an Application for Review on June 29, 2016 pursuant to the Environmental Bill of Rights, 1993 requesting the ministry conduct a review of the Environmental Compliance Approval issued in 2013 to Cruickshank Construction Limited. The application also requested that the ministry consider reviewing the facility s proposed 2016 Environmental Compliance Approval amendments which were posted for public comment on the Environmental Registry under EBR# 012-7105. On October 25, 2016, the ministry received additional comments from one of the applicants related to the facility which have also been considered in this review. The ministry has considered the applicant s concern that relates to combining site-wide air and noise emissions in the facility s Environmental Compliance Approval submission. An Environmental Bill of Rights Application for Review is for a review of existing policies, acts, regulations or instruments, in this case, a review of the Environmental Compliance Approval. As the application also outlines several issues of non-compliance with the existing Environmental Compliance Approval, the ministry s review also assessed the compliance activities related at the site, which is documented as an appendix to this Environmental Bill of Rights request. Summary of the EBR Application Request for Review & Consideration: The application outlines several reasons for the non-compliance with the Environmental Compliance Approval (ECA) which have been summarized as follows Inadequate Noise Control Deficiencies in the noise control requirements identified in the operator s ECA # 5860-95CPZG when approved in 2013. 1
10 noise barriers (berms) in Schedule A of the 2009 ECA were not built to control off-site impacts. Noise audits required by the 2009 and 2013 ECAs were not carried out. There are only 4 berms instead of 5. The quarry has operated for decades without noise protection for the nearest residential receptor, located 120 metres from main quarry entrance. A huge berm is shown on early site plans (2003) along the licenced boundary and Golder Noise Assessments (2007, 2009, 2010) specified a major berm in the same location. The operator failed to build the berm in 2015; it remains half built. Throughout this entire time, the quarry was in non-compliance, but was allowed to remain in full operation. Inadequate Dust Control Dust control measures at the facility have been insufficient as apparent from the complaints to the operator which were not communicated to the ministry. The Best Management Practices Plan was not properly implemented. Operation of Equipment Crushing and washing occurred in the north location of the quarry in 2011-2013 without completing the required acoustic audits. Hours of Operation The facility has operated outside its approved hours of operation. Ministry Enforcement Additional problems were identified in email correspondence with ministry staff in Kingston, supported by records obtained under the Freedom of Information and Protection of Privacy Act. Minimal enforcement action taken by the local ministry staff to correct major site problems. Public concerns about ministry s true capacity to regulate this facility properly in the future. Approval Uncertainty / Accountability 2
The meaning of the refusal notice for the 2016 ECA application, in particular, whether the 2013 ECA remains in effect despite the refusal decision. Expressed concern that the facility might launch a successful appeal regarding the decision of the 2016 ECA refusal. Emissions Report Concerns that pollutants from the aggregates operation, asphalt plant and the CBM Ready Mix Plant have historically been submitted/considered in isolation from each other. Ancillary operations in the same area should be combined and considered as one facility. Concerned with the quality of work from Golder Associates Ltd. (the consultant). Background The Elginburg quarry was purchased in 1965 by McGinnis & O'Connor Limited. In 1986 the quarry was owned and operated by Frontenac Aggregates and Construction, a division of Cruickshank Construction Ltd. As of 2005, Cruickshank Construction Limited still owns and operates the quarry under a licence by the Ministry of Natural Resources and Forestry under the Aggregate Resources Act. Cruickshank Construction Limited (operator) operates under a 2013 ECA issued by the Ministry of the Environment and Climate Change. The ECA authorizes the operation of a hot mix asphalt plant and contains conditions related to operation and maintenance, noise, fugitive dust, and reporting requirements. The ECA further regulates noise and dust emissions from all activities associated with the entire quarry operation. The facility previously operated under an ECA dated 2009 which was revoked and replaced by the 2013 ECA. The 2009 ECA was issued based on the company s proposal to construct 10 new berms (in addition to the existing north perimeter berm) at specific locations and dimensions specified in Schedule A. The 2009 ECA application was reviewed in accordance with ministry noise guidelines and approved with the requirement that the 10 new berms be constructed not later than three months from the date of the issued approval. Within the same period of three months the company had to strategically locate shielding of some asphalt plant components. The details of the specific abatement measures for this task were required to be provided within an updated Acoustic Assessment Report. There was also a specific condition for an updated Acoustic Assessment Report to be sent to the ministry no later than four months after the issuance of the ECA. 3
Schedule A of the ECA stated that all Noise Control Measures (Phase 1 berms and strategically located shielding of some asphalt plant components, and Phase 2 abatement measures for the replacing of existing diesel generators with quieter units, and locating the entire crushing operation deeper, up to 10 metres, into the quarry floor) had to be implemented in accordance with approved stated time periods for their implementation. The ECA also included a condition for an acoustic audit to be conducted by an independent consultant, and the acoustic audit report was required to be submitted to the ministry no later than three months after fully implementing the Noise Control Measures detailed in Schedule A of the ECA. o The ministry did not receive an acoustic audit since the company did not implement the noise controls as mentioned in Schedule A. Instead, the company submitted an application for an amended ECA. In accordance with condition 4 of the noise related conditions in the 2009 ECA, the consultant (on behalf of the operator) submitted the updated Acoustic Assessment Report within the four month requirement of the issuance of the 2009 ECA. The updated report dated October 30, 2009 showed that only five noise barriers (BR-4 incorporated previously existing north perimeter berm) were in existence at the time the updated report was completed and submitted to ministry for a review. The ministry reviewed the updated report and determined that there were modifications in relation to previously approved equipment, facility operation time, noise control measures and assessment criteria. Ministry technical review also revealed that the methodology for establishing new assessment criteria presented in the report was not acceptable. Therefore the ministry issued a letter on February 5, 2010 advising the company that condition 4 of the 2009 ECA had not been fulfilled and that the company was required to resubmit an Acoustic Assessment Report. In June 2010, the ministry received an application to amend the 2009 ECA to include a below-grade generator for the facility s mobile crusher, relocate the crushing and washing operation to the north quarry, and to update the noise profile of the facility to reflect only five berms for noise control. A new ECA (which revoked and replaced the 2009 ECA) for the site was issued in 2013. The 2013 noise profile was updated according to the application submitted by the operator, which is mentioned on page 2 of the 2013 ECA. An amendment was issued in 2013 which revoked and replaced the 2009 ECA noise conditions because the supporting Acoustic Assessment Report dated June 2010 demonstrated that only five berms were needed for noise control. It is noted that the berm closest to the nearest residential receptor, located 120 metres from main quarry entrance (BR-2) as referenced in the applicants submission, was required as part of the 2009 ECA, however it was later deemed to be one of the five berms not required in order for the facility to operate in accordance 4
with the ministry s noise guidelines. Subsequently, BR-2 was not one of the berms included in the 2013 approval. On February 3, 2014, the ministry received a Best Management Practices Plan from the operator, as required by their 2013 ECA, which describes, among other things, measures to minimize dust emissions from the facility. In April 2016, the facility submitted an updated Best Management Practices Plan to the ministry in accordance with the requirements in condition 7 and 8 of its ECA as a result of recent operational changes made at the site. On June 22, 2016, the ministry issued a Notice to the 2013 ECA that fulfilled this requirement. On June 3, 2016, following the ministry s technical review of the 2016 application for an amendment to the 2013 ECA, the ministry issued a Notice of Refusal as the facility operator was unable to supply the ministry with the requested site-wide Acoustic Assessment Report with detailed Noise Abatement Action Plan, demonstrating the compliance of the facility with the Environmental Protection Act and its regulations, in accordance with Section 9(4) of the Act. Outcome of Review: 2013 ECA After careful consideration of the information contained in the Environmental Bill of Rights Application for Review received on June 29, 2016, it is the ministry s position that the request for review of the 2013 Environmental Compliance Approval #5860-95CPZG was reviewed and issued in accordance to ministry standards. 2016 ECA Also, since the 2016 ECA application for amendment, posted on the Environmental Bill of Rights Registry (EBR 012-7105) was refused based on insufficient information, the ministry did not undertake an Environmental Bill of Rights Review of this ECA. Next Steps Following the issuance of the Notice of Refusal in June 2016, the ministry participated in a pre-submission consultation meeting with the operator and their consultants in September 2016. The operator committed to resubmitting its application for an amendment to the ministry in winter 2016/2017. This resubmission will further address the outstanding concerns which led to the refusal of the 2016 amendment application. The resubmission will address the installation of the more efficient and quieter burner which will bring the company into compliance with its ECA, proposed on-site ventilation adjustments to the asphalt plant, and an earlier start time for the asphalt 5
plant. During the meeting the company advised the ministry that they will no longer be requesting the removal of BR-5 and that it will remain in place. The resubmission will include combined site-wide air and noise emissions. Following the resubmission, the ministry will again thoroughly conduct a review of the technical information submitted and will also conduct a site visit to support the review of the resubmission. When received, the resubmission will be posted on the Environmental Bill of Rights Registry for further public comment. The ministry will continue to communicate with the concerned citizens and be available to address any concerns associated with the site. 6
APPENDIX * EBR Application for Review Request to Review Environmental Compliance Approval Cruickshank Construction Limited Elginburg Quarry Kingston *Some of the information below has been introduced in the Decision Summary above. Overview of ECA and Compliance related Activities The Elginburg quarry was purchased in 1965 by McGinnis & O'Connor Limited. In 1986 the quarry was owned and operated by Frontenac Aggregates and Construction, a division of Cruickshank Construction Ltd. As of 2005, Cruickshank Construction Limited still owns and operates the quarry under a licence by the Ministry of Natural Resources and Forestry under the Aggregate Resources Act. Cruickshank Construction Limited (operator) operates under a 2013 ECA issued by the Ministry of the Environment and Climate Change. The ECA authorizes the operation of a hot mix asphalt plant and contains conditions related to operation and maintenance, noise, fugitive dust, and reporting requirements. The ECA further regulates noise and dust emissions from all activities associated with the entire quarry operation. The first complaint regarding the quarry was received by the Ministry of the Environment and Climate Change in late 2007 regarding a suspected well interference. The matter was resolved at that time. The facility previously operated under an ECA dated 2009 which was revoked and replaced by the 2013 ECA. The 2009 ECA was issued based on the company s proposal to construct 10 new berms (in addition to the existing north perimeter berm) at specific locations and dimensions specified in Schedule A. The 2009 ECA application was reviewed in accordance with ministry noise guidelines and approved with the requirement that the 10 new berms be constructed not later than three months from the date of the issued approval. Within the same period of three months the company had to strategically locate shielding of some asphalt plant components. The details of the specific abatement measures for this task were required to be provided within an updated Acoustic Assessment Report. There was also a specific condition for an updated Acoustic Assessment Report to be sent to the ministry no later than four months after the issuance of the ECA. Schedule A of the ECA stated that all Noise Control Measures (Phase 1 berms and strategically located shielding of some asphalt plant components, and Phase 7
2 abatement measures for the replacing of existing diesel generators with quieter units, and locating the entire crushing operation deeper, up to 10 metres, into the quarry floor) had to be implemented in accordance with approved stated time periods for their implementation. The ECA also included a condition for an acoustic audit to be conducted by an independent consultant, and the acoustic audit report was required to be submitted to the ministry no later than three months after fully implementing the Noise Control Measures detailed in Schedule A of the ECA. o The ministry did not receive an acoustic audit since the company did not implement the noise controls as mentioned in Schedule A. Instead, the company submitted an application for an amended ECA. In accordance with condition 4 of the noise related conditions in the 2009 ECA, the consultant (on behalf of the operator) submitted the updated Acoustic Assessment Report within the four month requirement of the issuance of the 2009 ECA. The updated report dated October 30, 2009 showed that only five noise barriers (BR-4 incorporated previously existing north perimeter berm) were in existence at the time the updated report was completed and submitted to ministry for a review. The ministry reviewed the updated report and determined that there were modifications in relation to previously approved equipment, facility operation time, noise control measures and assessment criteria. Ministry technical review also revealed that the methodology for establishing new assessment criteria presented in the report was not acceptable. Therefore the ministry issued a letter on February 5, 2010 advising the company that condition 4 of the 2009 ECA had not been fulfilled and that the company was required to resubmit an Acoustic Assessment Report. As only five of the required 10 berms were in place at the time the acoustic measurements were conducted in 2010, the ministry acknowledges that the facility was not in compliance with its 2009 ECA at that time, however the issue was addressed through subsequent submissions to amend the ECA. In June 2010, the ministry received an application to amend the 2009 ECA to include a below-grade generator for the facility s mobile crusher, relocate the crushing and washing operation to the north quarry, and to update the noise profile of the facility to reflect only five berms for noise control. A new ECA (which revoked and replaced the 2009 ECA) for the site was issued in 2013. The 2013 noise profile was updated according to the application submitted by the operator, which is mentioned on page 2 of the 2013 ECA. An amendment was issued in 2013 which revoked and replaced the 2009 ECA noise conditions because the supporting Acoustic Assessment Report dated June 2010 demonstrated that only five berms were needed for noise control. It is noted that the berm closest to the nearest residential receptor, located 120 metres from main quarry entrance (BR-2) as referenced in the applicants 8
submission, was required as part of the 2009 ECA, however it was later deemed to be one of the five berms not required in order for the facility to operate in accordance with the ministry s noise guidelines. Subsequently, BR-2 was not one of the berms included in the 2013 approval. In the summer of 2015, the Ministry of Natural Resources and Forestry requested that the facility operator voluntarily erect a berm along the property boundary closest to the nearest receptor. This request was not made under Ministry of the Environment and Climate Change order and was not related to requirements of the existing ministry approval. The berm has been partially constructed per the Ministry of Natural Resources and Forestry s request in the same vicinity where the previous Ministry of the Environment and Climate Change berm BR-2 was originally to be positioned, however following an inspection by Ministry of Natural Resources and Forestry staff in May 2016, it was determined that this berm is not a requirement of the site plan. On February 3, 2014, the ministry received a Best Management Practices Plan from the operator, as required by their 2013 ECA, which describes, among other things, measures to minimize dust emissions from the facility. The ministry received its next complaint regarding the site in September 2014. Concerns were related to noise, dust and odours from the asphalt plant within the quarry. As a result, the ministry engaged the Ministry of Natural Resources and Forestry and the facility operator with respect to the concerns to ensure they were being addressed. The ministry received additional complaints and conducted an inspection of the asphalt plant in October 2014. No issues of non-compliance with the conditions of the 2013 ECA were identified through the inspection. During the inspection, the ministry reviewed the requirements of Condition 12 of the ECA related to notifying the ministry s district manager of each environmental complaint within 48 hours of receiving the complaint. However, at the time of the inspection, the ministry was not aware that the residents had been reporting their complaints to the operator directly. When the ministry became aware of this claim, the company was again reminded that going forward all complaints as they relate to their ECA, must be reported to the ministry. In February 2015, the ministry met with concerned residents about the proposal for expansion at the quarry. The residents were encouraged to contact the local district office with respect to any further concerns or questions about the existing operations. Throughout the 2015 operating season, comments and concerns about the proposed expansion and dust from the existing site operations were received by the ministry s local Kingston District Office. Concerns were raised with the facility 9
operator and were dealt with on a voluntary basis. Actions by the operator included updating its best management practices for dust control, which included having a dedicated water truck onsite. In July 2015, the ministry met with the operator to address complaints received regarding noise associated with night time and early morning operations at the facility. The operator cooperated and the ministry has not received any further complaints about night time or early morning operations. In response to numerous off-site dust concerns throughout the 2015 operating season, ministry staff conducted air quality monitoring both upwind and downwind of the quarry from early August to the end of November 2015. The results of the monitoring identified a few exceedances of the ministry s half hour limit in Ontario Regulation 419, for total suspended particulate. The matter was referred to the ministry s Investigations and Enforcement Branch and is currently under review. The ministry also met with the facility operator in early 2016 to discuss the results of the off-site dust monitoring and required action to address the issue. As a result the facility operator advised it would be making onsite adjustments to mitigate the offsite dust impact and would be submitting an application for an amendment to their ECA to address, among other things, measures to mitigate off-site impacts In September 2015, it was brought to the ministry s attention that crushing and washing operations had allegedly occurred in the north-east quadrant of the north quarry in 2011-2013 without completing the required acoustic audits. During an inspection of the facility in October 2014 it was noted that crushing and washing operations were occurring only in the south quarry and had not commenced in the north-east quadrant of the north quarry. The information provided to the ministry in September 2015 was assessed by the ministry s Investigations and Enforcement Branch who advised that no further action would be taken at that time. The ministry also raised this matter with the operator to advise them that an acoustic audit must be conducted prior to any washing or crushing activities in the north-east quadrant of the north quarry. To date, the ministry is unaware of crushing operations occurring to the north. In September 2015, the ministry visited the site to assess what berms were in place at the quarry. At the time of the visit, one berm (BR-5) identified in the facility s 2013 ECA was not in place at the north side of the asphalt plant. All other berms were in place. The ministry advised the operator that they were required to erect BR-5 and in October 2015 the operator s consultant undertook noise measurements. Following this undertaking, the operator advised the ministry that these noise 10
measurements would be reflected in their upcoming application for amendment submission to its ECA, as well as the installation of the more efficient and quieter burner, possibly other changes to the asphalt plant, and the removal of BR-5 berm, as they informed the ministry that it was no longer required in light of the installation of the new burner. However the company was advised that pending approval of their amendment application, and prior to the commencement of spring operations, berm BR-5 must be erected. In April 2016, the company informed the ministry that berm BR-5 had been constructed along the north side of the asphalt plant, and it remains in place today. In December 2015, the ministry provided the company with the results of the off-site dust monitoring. In January 2016, the ministry met with the facility operator to discuss the results of the off-site dust monitoring and required action to address the issue. As a result the facility operator proposed on-site ventilation adjustments to mitigate the off-site dust impact and would also be including these ventilation upgrades in its application to amend its ECA. In April 2016, the facility submitted an updated Best Management Practices Plan to the ministry in accordance with the requirements in condition 7 and 8 of its ECA as a result of recent operational changes made at the site. On June 22, 2016, the ministry issued a Notice to the 2013 ECA that fulfilled this requirement. On June 3, 2016, following the ministry s technical review of the 2016 application for an amendment to the 2013 ECA, the ministry issued a Notice of Refusal as the facility operator was unable to supply the ministry with the requested site-wide Acoustic Assessment Report with detailed Noise Abatement Action Plan, demonstrating the compliance of the facility with the Environmental Protection Act and its regulations, in accordance with Section 9(4) of the Act. Next steps: The ministry s Kingston District Office remains committed to continuing with its communication with the concerned citizens to address their concerns. The ministry s Kingston District Office will communicate with the applicants on the outcome of the referral to the Investigations and Enforcement Branch regarding the air exceedances when it becomes available. 11