Canada: The Problem of Too Much Soil and Dirty Fill

At the end of December, 2016, the Ministry of Environment and Climate Change (“MOECC”) in Ontario released its Excess Soil Policy Framework.

The problem of excess soil is not a small one, and it has been gaining more attention, particularly as big cities seek to intensify, creating vast quantities of “fill” that then has to go somewhere. Clarington (east of Toronto) banned it from coming to its town completely. Residents in the Town of Erin and Wellington County (northwest of Toronto) have established a website to bring attention to their town’s plight in having to deal with this unwanted excavated material.

The failure to manage these soils properly impacts ground and surface water, natural areas, and agricultural lands. It also causes serious nuisances to receiving communities in the form of dust, track traffic, road damage, erosion, drainage and other social, health and environmental problems. As the Framework also notes, it has implications for greenhouse gas emissions, as thousands of trucks annual move soil around the province.

Municipalities are key players in managing receiving sites and it’s become imperative that municipalities have tools in place to regulate excess soil through their site-alteration bylaws. Currently, there is great variance between how individual municipal by-laws define soil quality, if it’s defined at all. Some bylaws address nuisance issues, while others do not. Under the Framework, the Ministry of Municipal Affairs and Housing (“Municipal Affairs”) is to play a greater role in supporting by-law development, land use and development planning. Similarly, Municipal Affairs and the MOECC will work with municipalities to identify local reuse opportunities and suitable temporary sites.

The Framework has several aims, including the following:

  • Managing source sites better;
  • Creating clearer roles and responsibilities amongst the regulators;
  • Connecting existing legislation better, such as brownfields-related requirements and inert fill provisions under Regulation 347, both under the Environmental Protection Act;
  • Providing clearer technical guidance and direction for excess soil reuse standards and testing procedures to ensure the soil is protective of human health and the environment;
  • Providing better tracking and record keeping to ensure that the soil reaches intended sites; and
  • Protecting sensitive areas of provincial and local interest, including natural heritage and hydrologic features and functions, farmland and archaeological resources, and significant built heritage and cultural heritage landscapes.

A major change, which will require new legislative tools, is that source sites will have new obligations in the development of excess soil management plans, identification of appropriate receiving sites, arrangement of proper contracts, and the registration and tracking of excess soil to the receiving sites.  They will have to hire Qualified Persons to develop the soil management plans.

The province will now be taking steps to fill regulatory gaps and establish clearer roles for a number of ministries, including Infrastructure, Transportation, Natural Resources and Forestry, and Agricultural, Food and Rural Affairs.  This is indeed a major overhaul of the regulatory framework that seems overdue.

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About the Author

Since starting her practice in 2001, Paula has combined her Masters of Biology with her specialization in environmental law from the Schulich School of Law at Dalhousie University to provide her clients with top notch environmental legal advice.  She has serviced corporate, non-profit and municipal clients, giving her a diverse perspective on the complex environmental issues that our laws and policies seek to address.

Paula has provided opinions on a variety of environmental legal issues, ranging from municipal by-law powers to obligations under various environmental statutes.  As a litigator, she has practiced before various administrative tribunals, in the provincial and superior courts, and at all appellate level courts including the Supreme Court of Canada.

 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

This article was first published on the Siskinds Law LLP web site.

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