ENVIRONMENTAL ASSESSMENT ACT SECTION 9 NOTICE OF APPROVAL TO PROCEED WITH THE UNDERTAKING

Transcription

1 ENVIRONMENTAL ASSESSMENT ACT SECTION 9 NOTICE OF APPROVAL TO PROCEED WITH THE UNDERTAKING RE: An Environmental Assessment for the Easterly Extension of the 407 Transportation Corridor Proponent: EA File No.: Ontario Ministry of Transportation EA TAKE NOTICE that the period for requiring a hearing, provided for in the Notice of Completion of the Review for the above-noted undertaking, expired on January 29, I received four submissions requesting a hearing by the Environmental Review Tribunal. One of these submissions has been withdrawn. I consider a hearing to be unnecessary in this case. Having considered the purpose of the Environmental Assessment Act, the approved terms of reference, the environmental assessment, the ministry Review of the environmental assessment and submissions received, I hereby give approval to proceed with the undertaking, subject to conditions set out below. Page 1 of 15

2 REASONS My reasons for giving approval are: (1) The proponent has complied Act. with the requirements of the Environmental Assessment (2) The environmental assessment has been prepared in accordance with the approved Terms of Reference. (3) On the basis of the proponent s environmental assessment and the ministry Review, the proponent s conclusion that, on balance, the advantages of this undertaking outweigh its disadvantages appears to be valid. (4) No other beneficial alternative method of implementing the undertaking was identified. (5) The proponent has demonstrated that the environmental effects of the undertaking can be appropriately prevented, changed, mitigated or remedied. (6) On the basis of the proponent s environmental assessment, the ministry Review and the conditions of approval, the construction, operation and maintenance of the undertaking will be consistent with the purpose of the Environmental Assessment Act (section 2). (7) The government, public and Aboriginal community review of the environmental assessment has indicated no outstanding concerns that have not been addressed or that cannot be addressed through commitments made during the environmental assessment process, through the conditions set out below or through future approvals that will be required. (8) The submissions received after the Notice of Completion of ministry Review was published are being addressed through commitments made during the environmental assessment process, through the conditions set out below or through future approvals that will be required, where appropriate. I am not aware of any outstanding issues with respect to this undertaking which suggest that a hearing should be required. CONDITIONS The approval is subject to the following conditions: 1. Definitions For the purposes of these conditions: Class Environmental Assessment means the approved MTO Class Environmental Assessment for Provincial Transportation Facilities (submitted 1997, Approved 1999, amended July 2000), as may be amended from time to time. construction means physical construction activities, including, site preparation works, but does not include tendering of contracts. Page 2 of 15

3 Date of Approval means the date on which the Order in Council was approved by the Lieutenant Governor-in-Council. DCR means a Design and Construction Report as defined by the Class Environmental Assessment. Director means the Director of the Environmental Assessment and Approvals Branch. EAAB means the Environmental Assessment and Approvals Branch of the Ministry of the Environment. environmental assessment means the document titled 407 East Individual Environmental Assessment and Preliminary Design Report. ministry means the Ministry of the Environment. proponent means Ontario Ministry of Transportation. Procurement Document means the document issued to procure the services of the service provider that will implement the undertaking, but does not include a process used to pre-qualify bidders. Regional Director means the Director of the ministry s Central Regional Office. TESR means a Transportation Environmental Study Report as defined by the Class environmental assessment. undertaking means the 407 East Transportation Corridor, which is generally comprised of the following elements: a 50 kilometre (km) easterly extension of the 407 transportation corridor from Brock Road in the City of Pickering to Highway 35/115 in the Municipality of Clarington known as the east-west mainline extension; two north-south freeway links connecting the proposed 407 corridor extension to Highway 401, one in Whitby (the West Durham Link) and the other in Clarington (the East Durham Link), each extending approximately 10 km in length; support facilities, including two highway maintenance facilities, two commercial vehicle inspection facilities and three truck lay-bys; and protection for a dedicated transitway corridor along both the east-west mainline and East and West Durham Links, including the lands needed for two transitway maintenance facilities and 17 transitway stations (undertaking). 2. General Requirements 2.1 The proponent shall comply with the provisions in the environmental assessment which are hereby incorporated in this approval by reference except as provided in these conditions and as provided in any other approval or permit that may be issued for the undertaking. Page 3 of 15

4 2.2 These conditions do not prevent more restrictive conditions being imposed under other statutes. 2.3 The proponent shall carry out further preliminary design work and work associated with the detailed design and construction stages for the undertaking in accordance with the relevant provisions of the Class Environmental Assessment for Group A (new freeways) projects, which includes the preparation of DCRs and TESRs. 2.4 When developing the plans and documents required by Conditions 7-10, 13 and 15, the proponent shall be guided by the ministry s policies, guidelines, objectives and standards as set out in ministry publications. 2.5 If the implementation of the undertaking will proceed in phases, a plan or document submitted by the proponent pursuant to Conditions 7-10, 13 or 15 may be submitted for the entire undertaking together or for each phase of the undertaking separately. 2.6 Prior to the proponent issuing its Procurement Document for the undertaking, the proponent and the ministry shall meet to discuss the implementation of the Conditions in this Notice of Approval, including the standards and expectations for the plans and documents required by Conditions 7-10, 13 and Public Record 3.1 Final documents and plans required under Conditions 7, 8, 9, 10, 13, 15 and 18 shall be submitted to the Director to be filed in the public record. 3.2 Where a document or plan is required to be filed in the public record, the proponent shall provide two copies of the document to the Director: a copy for the file and a copy for staff use. 3.3 The proponent shall provide additional copies of the documents and plans referred to above in condition 3.1 in accordance with the following: a) Regional Director (as required by this Notice of Approval); b) Clerks of the Regional Municipality of Durham, Town of Ajax, City of Oshawa, Town of Whitby, City of Pickering and Municipality of Clarington (as required); and, c) 407 East Advisory Committee (407 EAC), if applicable. 3.4 EAAB file number EA shall be quoted on all documents provided by the proponent in accordance with Condition Compliance Monitoring Program 4.1 The proponent shall prepare and submit to the Director for the public record, an environmental assessment compliance monitoring program. Page 4 of 15

5 4.2 The compliance monitoring program shall be submitted to the Director within one year from the Date of Approval, or 60 days prior to construction, whichever is earlier. 4.3 The compliance monitoring program shall describe how the proponent will monitor its fulfilment of the provisions of the environmental assessment pertaining to mitigation measures, public consultation, and additional studies and work to be carried out; and the fulfilment of all other commitments made by the proponent during the environmental assessment process and the conditions included in this Notice of Approval. 4.4 The compliance monitoring program must contain an implementation schedule. 4.5 A statement must accompany the compliance monitoring program submitted to the Director indicating that the program submitted is intended to fulfil this condition. 4.6 The Director may require amendments to the compliance monitoring program, including the implementation schedule. If any amendments are required by the Director, the Director will notify the proponent of the required amendments in writing. 4.7 The proponent shall carry out the compliance monitoring program, as it may be amended by the Director. 4.8 The proponent shall make the documentation pertaining to the compliance monitoring program available to the ministry or its designate in a timely manner when requested to do so by the ministry. 5. Compliance Reporting 5.1 The proponent shall prepare an annual compliance report which describes its compliance with the conditions of approval set out in this notice and which describes the results of the proponent s environmental assessment compliance monitoring program. 5.2 The annual compliance report shall be submitted to the Director for the public record on or before May 31 of each year, with the first report being due in 2011, and shall cover all activities of the previous 12 month period. 5.3 Subsequent compliance reports shall be submitted to the Director for the public record on or before May 31 each year thereafter. Each compliance report shall cover all activities of the previous 12 month period. 5.4 The proponent shall submit annual compliance reports until all conditions in this notice are satisfied. 5.5 Once all conditions in this notice have been satisfied, the proponent shall indicate in its annual compliance report that the compliance report is its final compliance report and that all conditions in this notice have been satisfied. Page 5 of 15

6 5.6 The proponent shall retain either on site or in another location approved by the Director, copies of each of the annual compliance reports and any associated documentation of compliance monitoring activities. 5.7 The proponent shall make the compliance reports and associated documentation available to the ministry or its designate in a timely manner when requested to do so by the ministry East Advisory Committee (407 EAC) 6.1 The proponent shall establish a 407 EAC to ensure that concerns about the implementation of the undertaking are considered and mitigation measures are undertaken where appropriate. 6.2 The proponent shall provide administrative support for the 407 EAC including, at a minimum: a) Providing 407 EAC with meeting space, if necessary; b) Recording minutes of each meeting; c) Preparing and distributing meeting notices; and, d) Preparing an annual report to be submitted as part of the Compliance Reports required by Condition The proponent shall invite the following persons to participate on the 407 EAC: a) One representative from the Ministry of Transportation; b) One representative from the Regional Municipality of Durham; c) One representative from the City of Pickering; d) One representative from the Town of Ajax; e) One representative from the Town of Whitby; f) One representative from the City of Oshawa; g) One representative from the Municipality of Clarington; h) One representative from the Toronto and Region Conservation Authority; i) One representative from the Central Lake Ontario Conservation Authority; j) One representative from the Ganaraska and Region Conservation Authority; k) One representative from Environment Canada; A representative from the Ministry of the Environment shall be invited to attend all meetings as an observer. 6.4 The proponent shall also consider inviting other stakeholders to participate in the 407 EAC, including, but not limited to, members of the public and other federal and provincial agencies. Page 6 of 15

7 6.5 The 407 EAC shall be provided with and may review the documents set out below and may provide advice to the proponent relevant to the undertaking including: a) compliance reports required by Condition 5; b) stormwater management plan required by Condition 7 c) complaint protocol required by Condition 13; and d) vegetation restoration plans as required by Condition The proponent shall hold the first 407 EAC meeting within 3 months of the Date of Approval. At the first meeting, the 407 EAC shall develop its Terms of Reference outlining the governance and function of the 407 EAC. The Terms of Reference shall be developed in accordance with this Condition and shall be provided to the Director and Regional Director. The Terms of Reference shall, at a minimum include: a) Roles and responsibilities of 407 EAC members; b) Frequency of meetings; c) Member code of conduct; d) Protocol for dissemination and review of information including timing; and, e) Protocol for dissolution of the 407 EAC. 7. Stormwater Management Plan 7.1 The proponent shall prepare, to the satisfaction of the Regional Director, a Stormwater Management Plan for the sections of the undertaking that will not be drained to a stormwater management wet pond. 7.2 The Stormwater Management Plan shall be provided to the Ministry of the Environment, the Ministry of Natural Resources, the 407 EAC, the Department of Fisheries and Oceans Canada and Environment Canada for review and comment. The proponent shall consider any comments that are provided by the reviewers. 7.3 The Stormwater Management Plan shall be submitted to the Regional Director no less than 3 months prior to the start of construction or an agreed upon time by the Regional Director. 7.4 The Stormwater Management Plan shall, at a minimum, include: a) Plans and descriptions for the sections of the corridor not being drained to a stormwater management wet pond; b) A description of the receiving watercourse, including its characteristics, flow rates, assimilative capacity and whether species protected under the Endangered Species Act, 2007 are known to be present; Page 7 of 15

8 c) A jurisdictional scan of best management practices for treating stormwater in catchment areas not sufficiently large to support a wet pond; d) Identification of best management practices for the treatment of stormwater; e) The identification of innovative technologies for potential use on a pilot basis; f) A plan outlining how the identified best management practices will be implemented; g) Identification of water quality targets for treating stormwater; and h) Identification of any changes to the design of the undertaking that may be required to accommodate the implementation of the identified best management practices. 7.5 The proponent shall implement the undertaking in accordance with the Stormwater Management Plan. 8. Surface Water Monitoring and Mitigation 8.1 Before commencing construction, the proponent shall identify the areas, if any, within which the undertaking may affect surface water. 8.2 The proponent shall prepare, in consultation with the Ministry of the Environment s Central Regional Office and to the satisfaction of the Regional Director, a Surface Water Monitoring Plan for the areas identified in Condition The proponent shall provide the Surface Water Monitoring and Mitigation Plan to the Department of Fisheries and Oceans, Environment Canada, the appropriate Conservation Authority, and the Ministry of Natural Resources for review and comment. 8.4 The proponent shall consider any comments provided on the Surface Water Monitoring and Mitigation Plan. 8.5 The proponent shall submit to the Regional Director the Surface Water Monitoring and Mitigation Plan at least 3 months prior to the start of construction or at an agreed upon time by the Regional Director. 8.6 The Surface Water Monitoring and Mitigation Plan shall, at a minimum, include: a) A description and plan of the areas identified in Condition 8.1 above; b) Methodology and schedule for the collection of baseline data on surface water quality in the identified areas. At a minimum baseline data shall be collected during the 12 months prior to the expected start of construction and during the 12 months following the completion of construction; c) Monitoring parameters, locations and frequencies and a requirement to provide interpretive report(s) prepared by a qualified person; d) Recommended measures to mitigate the impacts of the undertaking on surface water quality; and, Page 8 of 15

9 e) Recommended measures to be undertaken if there are surface water impacts identified; 8.7 The proponent shall prepare, to the satisfaction of the Regional Director, a mitigation plan that would be implemented should the surface water monitoring program identify any areas where water quality targets are not being met. 8.8 The surface water monitoring program outlined in the Surface Water Monitoring and Mitigation Plan shall commence on a date determined by the Regional Director and shall continue until such time as the Regional Director determines that the surface water monitoring program is no longer required. The Regional Director will notify the proponent in writing of this determination. 8.9 The proponent shall carry out the Surface Water Monitoring and Mitigation Plan. 9. Winter Maintenance 9.1 The proponent shall use best management practices in the design and operation of road maintenance yards for the undertaking and in the application and storage of road salts and other de-icing agents during the operational phase of the undertaking. 9.2 The proponent shall prepare and submit to the Regional Director an Ice Prevention and De-icing Management Plan. The plan shall be submitted to the Regional Director for review no less than 6 months prior to the operation of the undertaking or any section of the undertaking or within such timeframe as otherwise agreed to by the Regional Director. 9.3 The proponent shall develop the terms of reference for Ice Prevention and Deicing Management Plan in consultation with the Regional Director. 9.4 The Ice Prevention and De-icing Management Plan shall, at a minimum, include: a) A jurisdictional scan of best management practices for the storage and use of road salts and other de-icing agents applied during the operational phases of freeways or other relevant transportation including preventing icing, de-icing, environmental impacts of de-icing, and mitigation measures to prevent deicing. The jurisdictional scan will at a minimum, include, recognized leaders in the application of de-icing agents from North America and Europe; b) Identification of which best management practices will be used for the application and treatment of road salts and other de-icing agents stored and applied by the proponent or its contractors during the operational phases of freeways or other relevant transportation facilities; c) Identification of areas of the receiving environment that may be particularly sensitive to road salts (salt vulnerable areas) and the additional salt management measures that may be needed to mitigate impacts in these areas; d) A plan outlining how the identified best management practices will be implemented, including any additional measures for the salt vulnerable areas; Page 9 of 15

10 e) The identification of innovative technologies for potential use on a pilot basis; and, f) Identification of any changes to the design of the undertaking that may be required to accommodate the implementation of the best management practices. 9.5 The proponent shall provide to the Director and Regional Director, as part of the reports required by Condition 5, annual updates detailing the efforts made by the proponent to minimize the use of road salts and other de-icing agents and to mitigate the impacts of winter road maintenance practices on the environment. 9.6 The proponent shall implement the undertaking in accordance with the Ice Prevention and De-Icing Management Plan. 10. Noise Mitigation 10.1 The proponent shall prepare, to the satisfaction of the Regional Director, Noise Mitigation Plans for each of the properties identified in attachment 4 to the errata sheet included as Appendix C in the ministry Review of the environmental assessment or for a lesser number of properties as may be authorized by the Regional Director in writing. In preparing the Noise Mitigation plan for a property, the proponent shall consult with the owner of the property on the plan. The Noise mitigation plan shall include information on how the property owners were consulted during the preparation of the Noise Mitigation Plan, what concerns were raised by the property owner and how these concerns have been addressed The Noise Mitigation Plans above shall be submitted to the Regional Director at least 5 months prior to the start of construction, or at date otherwise agreed to by the Regional Director The proponent shall implement the measures identified in each of the approved Noise Mitigation Plans. 11. Major Biological Features 11.1 If during the construction of the undertaking, the proponent or the Ministry of Natural Resources identifies a new major biological feature upon which the undertaking may have an adverse environmental effect, the proponent shall, in consultation with the Ministry of Natural Resources and any other directly affected agencies and stakeholders, determine the responses, if any, that would prevent, change, mitigate or remedy the adverse environmental effects In consultation with the Ministry of Natural Resources, the proponent shall evaluate the range of possible responses developed pursuant to Condition 11.1 and determine which is the preferred response(s) Prior to undertaking any construction activities or work that could affect the new major biological feature, the proponent shall prepare and submit to the Ministry of Page 10 of 15

11 Natural Resources a report describing the biological feature, the range of responses evaluated, the preferred response, and the results of any consultation that was carried out If, at any time, the proponent encounters or identifies a species which is protected under the Endangered Species Act, 2007, the proponent shall immediately contact the Ministry of Natural Resources to determine if there are additional requirements or considerations in accordance with the Endangered Species Act, Municipal Infrastructure 12.1 The proponent shall review the impacts of the undertaking on the future right-ofway requirements for Burns Street, as identified in the Town of Whitby s Official Plan, and shall ensure that the design of the undertaking minimizes any impact on the future right-of-way for Burns Street During the detailed design stage for the undertaking, the proponent shall consult with the Town of Whitby and consider any comments provided by the Town regarding potential impacts of the design of the undertaking on Burns Street The proponent shall compensate the City of Pickering for the displacement of the recreational facilities located at Don Beer Memorial Park in the City of Pickering. The facilities generally include a baseball diamond with a backstop, lighting, bleachers, outfield fencing, benches, a basketball court, a children s playground with climbing equipment and swing set, a gravel parking area for approximately 25 vehicles, and vehicular access thereto. The proponent shall not be responsible for any costs related to property acquisition The proponent shall review whether or not sidewalks and/or bike lanes will be included as part of the structure for all structures crossing the transportation corridor. This review shall occur at a minimum 6 months prior to the anticipated construction of a crossing structure and the review shall include the consideration of Council approved regional and/or municipal cycling infrastructure plans, existing sidewalk and bike lane facilities, future development and municipal policy Should the proponent determine during its review that sidewalks and/or bike lanes should be included on a crossing structure, the appropriate DCR or TESR shall be prepared or amended to incorporate the facilities required Conditions 12.4 and 12.5 do not prevent the proponent or the proponent of the crossing structure from voluntarily constructing sidewalks and bike lanes on a crossing structure. 13. Complaint Protocol 13.1 The proponent shall prepare and implement a protocol on how it will deal with and respond to inquiries and complaints received during the construction and operation of the undertaking. Page 11 of 15

12 13.2 The complaint protocol shall be provided to the 407 EAC for review prior to submission to the Director The proponent shall submit the complaint protocol to the Director for placement in the public record at least 6 months prior to the commencement of construction of the undertaking The Director may require the proponent to amend the complaint protocol at any time. Should an amendment be required, the Director shall notify the proponent in writing of the amendment required and when the amendment must be completed The proponent shall submit the amended complaint protocol to the Director for placement in the public record within the time period specified by the Director A statement must accompany the complaint protocol submitted to the Director indicating that the protocol submitted is intended to fulfil this condition. 14. Construction Management and Mitigation Plan 14.1 The proponent shall prepare, in consultation with the respective municipalities, a Construction Management and Mitigation Plan for each of the municipalities in which construction of the undertaking will be located. The proponent shall consider any comments from the municipality on the Construction Management and Mitigation Plan for that municipality The Construction Management and Mitigation Plans shall be updated to reflect the staged implementation of the undertaking, on an as needed basis The Construction Management and Mitigation Plans and updated Construction Management and Mitigation Plans shall be submitted to the appropriate municipality a minimum 3 months prior to the start of construction The proponent shall consider the coordination of any construction activities with construction activities being undertaken by the Regional Municipality of Durham, the appropriate local municipality, provincial agencies and other relevant constructions projects being undertaken by the proponent The proponent shall implement the undertaking in accordance with the Construction Management and Mitigation Plans. 15. Construction Noise, Vibration and Air Quality Impacts 15.1 The proponent shall prepare, to the satisfaction of the Regional Director, a Construction Noise, Vibration and Air Quality Impact Mitigation Plan 3 months before starting construction or at an agreed upon time by the Regional Director The Construction Noise, Vibration and Air Quality Impact Mitigation Plan shall identify, at a minimum, the noise and vibration impacts which may occur during construction and noise and vibration control mitigation measures for all major Page 12 of 15

13 construction activities including those due to possible blasting and pile-driving activities The Construction Noise, Vibration and Air Quality Impact Mitigation Plan shall also detail the program to be used by the proponent for monitoring local air quality conditions during construction activities that will be adjacent to sensitive land uses, as agreed to by the Regional Director. The monitoring program shall, at a minimum, include: a) The areas adjacent to the undertaking that may be sensitive to construction activities; b) The manner in which baseline air quality conditions will be established; c) Proposed sampling locations; d) The proposed start date and frequency of the ambient air monitoring and reporting to be carried out; e) The contaminants to be monitored as a part of the air quality monitoring; f) Measures to be implemented to mitigate air quality impacts; and, g) A schedule for reporting the results of the air monitoring program to the Regional Director The proponent shall implement the undertaking in accordance with the Construction Noise, Vibration and Air Quality Mitigation Plan. 16. Construction Contracts 16.1 In carrying out the undertaking, the proponent shall ensure that its contractors and subcontractors: a) Adhere to commitments made by the proponent during the environmental assessment process, including those made in the environmental assessment and in the proponent s responses to comments made during the environmental assessment comment periods; b) Meet applicable regulatory standards regarding construction, operation and maintenance of the undertaking; c) Provide information and training to contractor and subcontractor staff on the commitments made by the proponent during the environmental assessment process, including those made in the environmental assessment and in the proponent s response to comments made during the environmental assessment comment periods and on the applicable regulatory standards regarding construction, operation and maintenance of the undertaking; and d) Obtain any necessary approvals, permits or licenses for the undertaking. Page 13 of 15

14 17. Greenbelt Lands 17.1 The proponent shall consider the policies in section of the Greenbelt Plan (2005) in the detailed design and construction of the undertaking, including in particular the following policies: a) Construction practices shall minimize, wherever possible, the amount of Greenbelt lands, and particularly Natural Heritage Systems, traversed and/or occupied by infrastructure; b) Construction practices shall minimize, wherever possible, the negative impacts and disturbances to the existing landscape, including, but not limited to, impacts caused by light intrusion, noise and road salt; and c) Where the undertaking does cross a Natural Heritage System or intrudes into or results in the loss of a key natural heritage feature or key hydrogeologic features, including related landform features, construction practices shall minimize negative impacts and disturbance on the features or their related functions, and where reasonable, maintain or improve connectivity. 18. Vegetation Restoration Plans 18.1 The proponent shall prepare Vegetation Restoration Plans to offset the impacts of the undertaking on existing natural heritage features Vegetation Restoration Plans shall be prepared in consultation with the Ministry of Natural Resources and the applicable Conservation Authorities and shall be provided to the 407 EAC, the Ministry of Natural Resources and Environment Canada for review and comment at least 5 months prior to any construction activities that would impact the findings in the plans or at an agreed upon time by the Director The proponent shall consider any comments on the Vegetation Restoration Plans provided by the Ministry of Natural Resources, Environment Canada and the 407 EAC prior to finalizing the Vegetation Restoration Plans The proponent shall provide a final copy of the Vegetation Restoration Plans to the Director prior to any construction activities that would impact the findings in the plans. 19. Consultation With Aboriginal Communities 19.1 The proponent shall continue to consult with the Aboriginal communities identified in the environmental assessment during the detailed design and implementation of the undertaking The proponent shall fulfill commitments made to the Aboriginal communities during the environmental assessment, and in particular offers of funding to participate in the continuing archaeological work. Page 14 of 15

15 19.3 The proponent shall participate in discussions between the Huron-Wendat Nation and Ministry of Tourism and Culture regarding the curation of Aboriginal heritage resources where the discussions are related to or impact on the undertaking. 20. Amending procedures 20.1 In the event that there is a proposed amendment to the approved undertaking for reasons specified in Chapter 12 of the environmental assessment, or for any reason specified in Chapter 10 of the Class EA, the amendment shall be proposed and addressed in accordance with the provisions of Chapter 10 of the Class EA. Dated the day of 2010 at TORONTO. Approved by O.C. No. Original signed on May 26, 2010 by John Gerretsen Minister of the Environment 77 Wellesley Street West 11th Floor, Ferguson Block Toronto, Ontario M7A 2T5 Date O.C. Approved Page 15 of 15