Summary of Issue

Things to Consider

The practice of purchasing excess soil for reuse at a site has typically been considered to be a “commercial fill operation” by many municipalities. However, more recently, legal counsel for several municipalities (Township of King, Town of Mono and Town of East-Gwillimbury) have advised their municipalities to no longer use the term or the concept of  “Commercial Fill Operations” due to challenges with enforceability.  Typical definitions for a commercial venture that were problematic include: “the placing or dumping of fill for commercial benefit or gain”, or activities that involve “remuneration”.  The recommendation is to reference these sites as Large Site Alterations or similar wording with attached volume/size ranges to avoid ambiguity.  See Township of King (below).

There are several management options for soil excavated during construction that should be evaluated on a site by site basis. In all cases, the excavated soil or excess soil should be appropriate for its intended reuse.

Short Form References

This page makes reference to:

• the “Excess Soil Regulation”  which is the short form for the Ontario Regulation 406/19 On-Site and Excess Soil Management made under the Environmental Protection Act.

• the “Rules document” which is the short form the reference document to the regulation entitled Rules for Soil Management and Excess Soil Quality Standards

• MECP BMP -which is Ministry of Environment, Conservation and Parks document of Excess Soil – A Guide for Best Management Practices.

• Brownfields regulation refers to Ontario Regulation 153/04

Key Takeaways

While the Excess Soil Regulation does not use the term “commercial fill site” or “large receiver”, it provides rules for sites moving excess soil and reuse sites that may be relevant. 

A key consideration is clarification as to when excess soil is and is not designated a waste so that it can be reused. Where excess soil is being reused at a reuse site for final placement, there are various rules and requirements to avoid the waste designation. This is found in sections 3, 4 and 5 of the Excess Soil Regulation, which then refer to other key sections of the regulation and both parts of the Rules document.  A more detailed overview on these matters can be found in the Guidance document, and through resources on the ministry’s excess soil homepage (https://www.ontario.ca/page/handling-excess-soil).

As an overview summary which should be supplemented by a review of the Excess Soil Regulation and Rules document, excess soil may be reused, and is not considered waste, if all of the following are met:

• It is being beneficially reused, not stockpiled

• Soil is dry and the quality and quantity of the soil align with that necessary for the beneficial reuse

• If the soil is not dry, a local instrument must permit the deposit of the excess soil

• The reuse site has consented in writing to take the soil (not illegally dumped)

• Generally, soil staying in the project area is not a waste

When soil is moved to a reuse site, it is important that the full range of additional requirements in the Excess Soil Regulation and the Rules document that may need to be met as applicable. For example, there are storage rules applicable to reuse sites, but a by-law permit can create alternate storage requirements.  

Another key take-away is that section 5 of the Excess Soil Regulation outlines how excess soil can be received at a reuse site without an instrument.  One key condition is that the primary use of the reuse site must not be the deposit of excess soil. Also, there must be an identified beneficial purpose in connection with the undertaking for which the excess soil is to be used at the reuse site. In this case, a fill operation of this type would likely require an ECA. 

However, under section 4, such a site could be permitted with a byl-aw and would not be subject to an ECA, if the other conditions of section 4 are met.

Additional requirements coming into effect on January 1, 2022. 

Per Section 19 of the Excess Soil Regulation, reuse sites (which could include commercial/large scale fill sites provided those sites meet certain requirements) accepting at least 10,000m3 of excess soil for an undertaking will be required to register in an online website and develop and implement procedures to track and inspect each load of excess soil being received.  This will not include reuse sites that are part of an undertaking related to an infrastructure project.

From the project area (source site) perspective, excess soil planning requirements will apply to the removal and disposal of excess soil from certain larger and riskier projects. These requirements include:

• the need to register a notice in the excess soil Registry for the project prior to any soil leaving the project area;

• retention of a QP to complete or supervise an assessment of past uses, a sampling and analysis plan and excess soil characterization report; and an excess soil destination assessment report (if necessary);

• implementation of a tracking system;

Various exemptions exist for these requirements.

Key Resource

For further information, see MECP’s Factsheets (https://www.ontario.ca/page/handling-excess-soil with an overview of relevant regulatory requirements, best management practices, FAQs and key definitions related to:

• Source sites (generally known as project areas in the Excess Soil Regulation)

• Reuse sites (also commonly referred to as receiving sites)

• Soil Quality & Beneficial Reuse

• Offsite Soil Management – Temporary Soil Storage and Processing

• Stormwater Pond Sediment Management

• Qualified Persons and Sampling

• Infrastructure Projects

Things to Consider

Large scale Fill operations can be a source of revenue for a municipality and can often be properly managed if effective safeguards are created, as discussed in Options to Allow sections below. Municipalities should work with their legal team to ensure all revenues are expended against costs.  Municipalities may wish to reach out to the legal department of the Town of Whitchurch-Stouffville, which has undergone a thorough legal review of its fees and charges, to ensure they comply with the Municipal Act.    

Some municipalities have encountered issues with regulating the volume and quality of fill being imported to a commercial fill site. This issue can be addressed through Fill Management Plans and related agreements, and can be managed effectively through regular and ongoing assessment and reporting. 

Options to Allow

Large scale fill sites may provide an opportunity for beneficial reuse of soil and the costs of oversight, administration and enforcement can be recovered through  tipping fees, thereby contributing to the municipal tax base. To help mitigate the impact of these operations on the community, in addition to standard permitting requirements, many by-laws also include requirements to manage:

• Complaints

• Traffic and Transportation

• Community Consultation; and

• Cost Recovery. 

Examples of how these potential implications of commercial fill sites can be addressed through municipal by-laws are provided below.

Complaints

While the institution of a complaint mechanism is considered a good practice for large operations, complaint mechanisms were not covered in many of the municipal by-laws reviewed. One example by-law lists a requirement in its Site Alteration and Fill Management template:

Resources: Municipalities That Dare to Innovate 

The fill management field is changing rapidly and the Excess Soil Regulation brings new energy and attention to solving the wicked and persistent problems that have plagued illegal placement of soil.  Proactive municipalities are encouraged to explore creative solutions through pilot projects – like those currently being tested and under development by some municipalities, such as these innovate approaches instituted by the Town of East Gwillimbury

• Use of video and speed boards.   A requirement for a reuse site to install video cameras with a 30 day record cache at the entrance to the fill site and/or along the  designated truck route.   This record helps with accountability regarding transport agreements (adherence to haul routes, hours of operation, dust mitigation etc.) and provides a quick fact checking tool in response to resident complaints.  Installation and maintenance costs of cameras on private property or speed boards on public rights of way,  is at the expense of the permittee and all information is made available to the Town, as required.

• Small quantities checklist.  There are myriad examples of small excavations (especially hydro-vac activities) where the sample size is too small to require an assessment.  Instead, the Town of East Gwillimbury is in the process of establishing a checklist for drivers to complete upon each excavation, to check for odours, and visual assessment.

• Plan for continuous improvement.  A local government practitioner recommends integrating flexibility and ‘continuous improvement” into local instruments to allow the practice to benefit from ‘lessons learned’ and to adapt to refinements in rules and regulations.  For large scale sites, this can be integrated into Fill Management Plans as they are appendices to the council approved agreement or permit. The FMP, as an appending document can be amended as needed reflecting corrective measures, without going back to an approval process. This “living document” approach acknowledges the partnership and collaboration required in best management practices and encourages transparency and honesty in reporting incidents or unforeseen issues, rather than “burying” them to avoid penalties. It also requires the operator to upgrade its operations on an ongoing basis. 

• Produce an Agreement of Intent.  A similar approach can be applied to smaller operations, with an agreement forming the intent and the rules of engagement, including security.  If the operator does not comply with the intent, or if there are significant issues, the Town can pull the permit, and thereby the operator’s ability to conduct business.  But the underlying agreement and the attendant obligations, remains in place and enforceable regardless of whether the site is in operation.

By-Law Sections

General Prohibitions and Regulations

Things to Consider

In response to citizen concerns and the desire to protect the environment some municipalities have instituted a ban on all fill importation or have drafted By-laws that make it very difficult for landowners to import fill regardless of the purpose. The prohibition approach is potentially contrary to provincial policy for reuse and recycling.

Options to Prohibit

While prohibitions on the establishment of a large scale fill operation is, in principle, not in keeping with the provincial policy intention to encourage beneficial reuse, it is acknowledged that some activities at large, “commercial” fill operations may not be in keeping with ‘beneficial reuse’ anyway.  Prohibitions may be considered if there is potential for adverse effects and/or if the excess soil is determined to be waste. See inset below of an excerpt from the Excess Soil Regulation regarding the waste designation.  

Resource: Clarifying Excess Soil Reuse – Excess Soil Regulation

Where excess soil is being reused at a reuse site for final placement, the following criteria that must be met to avoid the waste designation:

1. The excess soil is directly transported to a reuse site from a project area, a Class 1 or Class 2 soil management site or a local waste transfer facility.

2. The owner or operator of the reuse site has consented in writing to the deposit of the excess soil at the reuse site (not illegally dumped)

   1. If excess soil is inappropriately deposited for final placement at a reuse site, this means that the soil is waste and will be governed under Part V of the Environmental Protection Act which includes the authority for the Ministry to require any person who as caused permitted or arranged for the unlawful deposit of the waste to remove it and properly dispose of it.

3. The excess soil is being beneficially reused (such as backfilling) at the reuse site and is not being stock-piled.

4. The excess soil is dry soil and remains dry soil until it is finally placed at the reuse site

• If the soil is not dry, a “local instrument” must permit the deposit of the excess soil. (Local instrument includes a municipal by-law and/or permit for site alteration or deposit of fill)

• Liquid soil, typically generated through hydro-excavation, tunneling and removal of sediment from storm water management ponds, may be de-watered or solidified which may enable it to be reused as dry soil.

It is important that meeting these requirements may trigger various provisions of the Rules document, depending on the circumstances.

Requirements for Issuance of a Permit

Things to Consider

Options to Allow

As indicated above,  large site fill operations provide an opportunity for beneficial reuse of soil when their implications on the community are properly managed. Permitting requirements for  large site fill operations are typically similar or the same as those specified in the by-laws for large fill sites.  Applicants are usually required to address the impact of the operation on the environment, the community, ground and surface water, agricultural resources, the quantity and quality of fill being imported, and any other matters deemed appropriate by the municipality.

Traffic and Transportation

Large scale fill operations are generally required by many by-laws to provide a Traffic and Transportation Plan in existing by-laws, which includes provisions for noise and dust control and haul routes.

[See Traffic and Transportation Issue page for more information]. The Excess Soil BMP document is also supportive of having plans of this nature.

Truck traffic is just one example of the permit requirements for a  large scale fill site, but its effective management can significantly reduce the impact of a fill operation on the community and so is discussed in more detail here.

Some municipalities reserve the right to request the specification of haul routes as part of the permit application, either at the discretion of the municipality or based on the amount of fill to be transported. For example:

Public consultation

Some municipalities may also require a public meeting as a requirement of a large site fill operation.

[See Consultation and Engagement Issue page for more information]

Permit Agreement

Things to Consider

Cost Recovery

Municipalities may also include specific provisions to recover the additional costs required to hire technical expertise to assess permit applications for  large scale fill operations.  For example: